*2 EDWARDS, Before PECK ENGEL, and Judges. Circuit EDWARDS, Judge. Circuit This is the appeal second in the federal prosecution of appellant on charges of con- spiracy to commit and commission of cer- tain federal firearms offenses. In the first appeal by States, the United this court re- the suppression versed of evidence which had been ordered the District Judge. We there held admitted failures of police who had executed the searches to timely file inventories and returns as re- quired by Ohio law did not require suppres- sion of the evidence. United States v. Du- dek, F.2d 684 Appellant originally charged, had been along Anthony with codefendants Bruno Joseph Seidita, in a 16-count indict- court, ment. On appellant remand alone was tried a jury before on four counts original in indictment which he was charged named. Count I appellant and his conspiracy codefendants with to commit specified offenses, federal firearms in viola- tion (1970). of U.S.C. 371 In Count II § appellant, along with codefendants Bruno Seidita, charged engaging with dealing the business of in firearms and am- being licensed, munition without viola- 922(a)(1) (2X1970). tion of U.S.C. §§ III charged appellant Counts and V with knowingly receiving possessing fire- arms, felon, having been a convicted in vio- App. 1202(a)(1) (1970). lation of 18 U.S.C. § III pertained Count events on or about 25, 1973, October and Count V events on 1973. about November After trial counts, appellant was convicted on all ex- cept V. Count the indictment as it relat- general The essence of A. Just talking about with co- appellant together ed to was that guns, general. conspired Bruno and he
defendants Seidita Q. Did he any discussions with engage dealing in the business of to and did Mr. Bruno? without in firearms in interstate commerce A. They discussing were money. license, possess and did receive and fire- happened What *3 then? arms, being previously convicted of a felo- Well, A. they made me an offer— ny. ques- The firearms and ammunition in burglaries were in three commit- tion stolen MR. Objection. GIULIANI: codefendants, Mylar, ted three other THE COURT: The objection shall be Seidita, Mylar, Marinelli and McGraw. sustained. Marinelli and McGraw all testified at the Who made the offer? grants immunity concerning trial under THE WITNESS: I believe Mr. Bruno burglaries disposition or the quoted price they willing were guns, goods ammunition and other stolen in pay for both loads. burglaries. the three MR. Objection, GIULIANI: your Hon- burglaries place night Two took on the or. one, approximately October 1973. In THE COURT: objection The shall guns were stolen from the home of Robert Cartwright Castle, overruled. That Pennsylvania, in New answer shall remain. brought Youngs- and back to the house in Q. you Do have a recollection of the town, Ohio, Mylar where lived. In the oth- price? er, the McFarland Hardware in New Store 3,000, 2,500 3,000, A. something like Wilmington, Pennsylvania, burglarized was that. merchandise, ammunition, including Q. That would be the price for what? which was then garage stored in Marinelli’s A. guns For the placed that I had Youngstown, Ohio. attic, and for the hardware at Mari- Mylar testified that before these two bur- nelli’s garage. glaries he had asked codefendant Bruno if Q. At the time you negotiated and he was buying guns, interested in some agreed on price, who was in the attic? Mylar Bruno told “to let him know got when we day them.” The next A. Myself, Seidita, after Joe Dudek and burglary appellant, in company with Bruno. Seidita, Bruno and went ga- to Marinelli’s Q. Now, what happened then? rage inspected the merchandise and A. us, The four of myself, Seidita, ammunition therein My- and then went to Bruno and Dudek carried all the firearms inspected lar’s house and approximately from the attic downstairs placed guns Mylar in his attic. testified as to them in an automobile. day: that same burglary Mylar, trio of McGraw and said, “Well, I you So what give would Marinelli stole approximately 60 firearms guns us for the hardware and the togeth- from the Sporting Weaver Goods Store in er?” Greenville, Pennsylvania, about a week la- they up price, And come with a I be- ter. These were Mylar’s also taken to lieve it was around— again house and appellant and Bruno came THE COURT: Who? Who said what? to inspect them. Mylar testified: THE WITNESS: Oh. Q. What did you do next in relation to time, A. At this I believe it was most- guns? those ly Mr. Bruno talking speaking. — A. I Anthony called Bruno. Q. Was Mr. Dudek there? Q. Did you have a Yes, conversation A. sir. with him relating guns? to those Q. Did he have any discussion with you about this at all? Yes, A. sir. conversation, after the burglary, day after the
Q. As a result of bur- do, glary. anything? if you what did
A.
Well,
I met them
at the
garage
[*]
[*]
[*]
[*]
[*]
[*]
guns.
them the
show
Q.
you
your
After
came to
arrange-
Q.
you
did
meet?
Whom
way,
ment with
do you recall
Mr.—
involved,
how much
Bruno and Dudek.
was
how much
A.
mon-
in the
ey
garage
was involved
sale of that
Q. Who else was there?
of firearms
scopes
and other items?
time,
Seidita, but
possibly
A. At this
Sir,
A.
say
I would have to
sure;
around
just
I
don’t
percent
I’m not 100
$3,000.
recall.
there?
Was McGraw
gun
Aside from one Raven .25 automatic
just myself,
police
A. No.
I believe it was
found in Danny Mylar’s
Ohio
possession,
Dudek and Bruno.
none of the
found
*4
possession
fact,
the
of the codefendants.
In
Q.
a
about
you
Did
have
discussion
except
weapon,
for one other
the stolen
guns and the ammunition?
the
guns
were never
police.
recovered
Yes,
A.
sir.
Q.
scopes
and the binoculars?
No
or ammunition were found on
The
premises
places
of the two
searched
Yes,
A.
sir.
under state search warrants. What was
Q. What was the substance of the
part
found was
of the merchandise stolen
conversation?
from the McFarland Hardware
on
Store
they
A.
be interested
Just that would
24, 1973,
October
at the same time that
know,
them, and,
how
buying
you
some
was
ammunition
stolen.
they
much would
offer for them.
Several witnesses also
vig-
testified over
Q. Was an examination made of the
objection
orous
by defense counsel to a
guns?
number of other occasions some months be-
Yes,
A.
sir.
burglaries
fore and after the three
referred
Q.
them?
Who made
above,
Mylar
to
when
and Marinelli had
and Bruno.
A. Dudek
appellant
shown stolen merchandise to
Q.
any discussion with
they
Did
Bruno,
appellant
quoted prices
had
af-
guns?
each other about
consulting catalogues.
ter
Yes,
gave them an in-
A.
sir.
I had
undisputed
appellant
It
is
that neither
made,
they
ventory list that I had
nor Bruno nor
to
Seidita
licensed
deal
looking
were
that over.
undisputed
ap-
in firearms.
It is also
that
Q.
you give
Did
them a list
pellant
felony
had a
conviction in the state
kit and caboodle?
thing,
whole
the whole
of Ohio.
Yes,
everything
A.
that was there
garage.
APPELLATE ISSUES
Q.
you
negotiation
any
Did
conduct
Appellant claims that
the convictions
concerning
weapons
those
with them
they
contrary
must be set aside because
are
load of material?
one
presents
to the evidence. He also
issue
Yes,
price,
me a
They
A.
sir.
offered
magnitude
claiming
constitutional
accept
and I told them
I would
it.
Fourth Amendment abuse
failure of the
Q.
you
guns?
Did
sell
affidavits for the search warrants to com
Yes,
A.
sir.
Texas,
ply
Aguilar
with the standards of
v.
you
To
sell them?
whom did
108,
1509,
378 U.S.
84 S.Ct.
SUFFICIENCY
PROOFS
lished before magistrate
by the affiant’s
declaration that
the informant has in the
prosecution’s
ap
The
evidence of
past given accurate information. United
in relation to the
pellant’s guilt
conspiracy
Kidd,
States v.
1316, 1317
crime
and the substantive
counts of the
1969).”
Jenkins,
United
supra
States
at
specific.
was clear and
Much
indictment
823.
Appendices
See
A and B.
undisputed. Appellant’s
it was
counsel ar
here,
gues
jury,
he did before the
requirement
second
for the affi
knowledge
appel
or absence of
denials
davit is phrased in these terms:
complicity
by persons
lant’s
testified to
magistrate must be informed of
[The]
to the crimes concerned should lead
close
some of the underlying circumstances
conclusion to that which the
opposite
an
from which the informant concluded that
But,
course,
jury
that inference
reached.
goods] were where he
[stolen
claimed
And,
jury.
appeal
was for the
of course on
they were
.
point
we view the
from the
facts
view
Aguilar
Texas,
114-115,
at
U.S.
government
favorable to the
which was ac
S.Ct. at 1514.
cepted by
jury
guilty.
in its verdict of
point
On this
the two
States,
affidavits we
60,
con-
See Glasser
United
315 U.S.
sider
issuing
told the
457,
magistrate
(1942);
the follow-
S.Ct.
THE FOURTH AMENDMENT ISSUE frame house occupied by American Machine and Supply Company. (Appendix A). At a Appellant asserts that the two affi occupied warehouse also by American Ma- printed Appendices davits A and B to chine Supply Company, the affiant had opinion this did not serve to meet the two reason to believe other stolen property— tests set forth in the Aguilar and Spinelli “safes-boats-wigs-pistols-TV affidavits, sets-gas however, cases. Both employ as ranges, ovens, microwave weight sertions which scales. do meet the reliable infor All property of this being stolen burgla- mant test: ries” —would be (Appendix B). discovered. magistrate must be informed of [T]he Additionally, the affiant stated that “feder- . some of the underlying circum- agents al have searched this [warehouse] stances from which the officer concluded for stolen on day prior 2/14/74 informant, [one whose identity need the filing of this and in their affidavit] not be disclosed . . was “credible” search then boat, found a stolen stolen from or his information “reliable.” Easton, Maryland, on 11/26/72.” (Appen- Aguilar Texas, 114, v. 378 at U.S. 84 S.Ct. B). dix at 1514. The information contained in the affida- Thus, only not were there two dif vits in the instant case came from an un- ferent and listings goods detailed alleged named informant whom the affiant swore to be located at the two different locations given had reliable information in past and a statement that all goods had been resulting in “several arrests and convic- burglaries,” addition, “stolen in but in there “recovery tions” and in of large quantities was the confirmation by law enforcement property.” of stolen In United States v. officers themselves of one item of stolen Jenkins, (6th 819 1975), 525 F.2d Cir. goods, namely, the stolen boat. The facts general believability supplied court held that “the by affidavits, both of these simul may satisfactorily be estab- taneously filed and by considered the mag- [an informant]
1293 istrate, by could be taken into account him stamp for the police. However, where determining probable cause as to each these circumstances detailed, are where Nolan, 413 F.2d reason crediting affidavit. for the source of the 850, (6th 1969). Cir. given, information is when magis a probable cause, trate has found the courts then, This, speaks of much more not should invalidate the warrant by in knowledge than the mere “rumor circulat terpreting the affidavit hypertechni in a ing in the underworld” about which Mr. cal, commonsense, rather than a manner. Spinelli, Harlan was concerned in Justice Although in particular case it may not 410, 416, at 584. Where 393 U.S. S.Ct. easy determine when an affidavit significant is a amount of detail in there demonstrates probable existence of affidavit, case, Magistrate as in this cause, the resolution of doubtful or mar the informant had may personal infer that ginal cases in this area should be largely the information in a knowledge or obtained preference determined to be ac Jenkins, See United States way. reliable corded to warrants. Jones v. United United 819, (6th 1975); Cir. 525 F.2d 257, 270, States 725, U.S. 80 S.Ct. [362 Jensen, 861, (6th 432 F.2d Cir. States 735, 4 (I960)]. L.Ed.2d 697 1970). Ventresca, United States v. 102, 380 U.S. frequently We have in this circuit cited 108, 741, 746, 13 85 S.Ct. (1965). L.Ed.2d 684 interpretation the commonsense Sevier, See United States v. 539 F.2d forth in United Fourth Amendment set (6th United 1976); Cir. Shrop States v. Ventresca: shire, 137, 141 (6th 498 F.2d cert. 1974), Cir. teachings If the of the Court’s cases are denied, U.S. 95 S.Ct. to be followed and poli- the constitutional Olt, United States v. (1975); L.Ed.2d 845 served, warrants, cy affidavits for search 1974); 911-12 Cir. here, such as the one involved must be Kidd, States v. 1316, 1317 magistrates tested and interpreted by and courts in a commonsense and realistic This emphasized circuit has also that the They normally fashion. are drafted fairly inferences to be drawn from the lan- *6 nonlawyers in the midst and haste of a guage the Magis- of affidavit are for the investigation. criminal Technical re- Sevier, draw. See United trate to States quirements specificity once elaborate 603; supra at United States v. Manufactur- pleadings exacted under common law Bank, ers National 699, 536 (6th F.2d 702 proper place have no in this area. A Jenkins, United States v. 1976); Cir. 525 grudging negative by or attitude review- 819, (6th 823-24 United 1975); Cir. ing courts toward warrants will tend to v. Shropshire, supra States at 142. discourage police officers from submit- ting judicial their evidence to a officer Accepting law, these rules of we be acting. before lieve that the Youngstown Municipal Judge
This say is not to cause probable who issued these specific warrants had both by can be made out affidavits which are information permissible inferences be purely conclusory, stating only the affi fore him from which he could appropriately ant’s or an informer’s that probable belief probable find cause to believe that cause exists without detailing any of the premises being concerned were used at that “underlying upon circumstances” receiving time for and concealing stolen Aguilar v. Tex that belief is property based. and that stolen property See would be as, supra. 1509, 12 U.S. found there. The motion to suppress S.Ct. evi [378 (1964)]. properly L.Ed.2d dence was denied. Recital some of underlying circum- CLAIMS OF REVERSIBLE ERROR
stances in the affidavit if the is essential magistrate perform is to his detached The most appellant’s serious of claims of merely and not appear function serve as a rubber error to us to concern the fact that offered and the District prosecution Supply Company, which was co-owned testimony appellant’s in- Judge allowed appellant, certainly was probative of the volvement in a number of nonfederal nature of the criminal operation pertaining were receiving, crimes. These offenses guns and ammunition. As this court concealing selling goods stolen other Roberts, held in United States v. 548 F.2d than firearms. 1977): Cir. admissible, testimony it must If The jury is entitled to know the “setting” passed muster under the terms of of a ease. It expected cannot be to make 404(b) Rules 403 and of the Federal Rules its decision in a knowledge void—without of Evidence: time, place and circumstances of relevant,
Although may evidence be ex- the acts which form the basis of probative cluded if its value is substan- charge. tially outweighed by the danger of unfair Roberts, United States supra at 667. prejudice, issues, confusion of the or mis- Also, in Turner, United 423 F.2d leading jury, or considerations of denied, (7th Cir.), cert. 398 U.S. delay, time, undue waste of or needless S.Ct. (1970), L.Ed.2d 552 the Sev presentation of cumulative evidence. enth Circuit stated: Fed.R.Evid. 403. of other crimes may be [EJvidence crimes, Evidence of other wrongs, or presented “they when are so blended or acts is not prove admissible to the charac- connected with the one on trial as that person ter in order to show that he proof of incidentally one involves the oth- conformity acted in therewith. It may, er; explains the circumstances there- however, be admissible for pur- other of; or logically tends prove any ele- poses, such proof motive, opportuni- ment of the charged.” crime United intent, ty, preparation, plan, knowledge, Wall, States v. identity, or absence of mistake or acci- dent. Turner, States v. supra at 483-84. 404(b).
Fed.R.Evid. Appellant’s particular emphasis, however, Appellant’s claims on this issue are not upon is testimony Mylar from and Helen frivolous. On record, consideration of this Terlecky (his girlfriend) and other witness- however, we find required that the balance concerning es events both before and after weighs to be struck sufficiently heavily on particular burglaries which produced admissibility the side of so that we cannot and ammunition. Mylar’s evi- Judge hold that the District abused his dis- dence was clearly the specific most in allowing cretion the evidence to be heard. damaging. It was that appellant and Bru- appellant’s objec To the extent that *7 no inspected, priced bought goods (oth- proof tions to pertain of other crimes to the er firearms) than which Mylar, Marinelli theft, purchase and sale of merchandise and McGraw had stolen on between 12 and (other ammunition) than which 25 occasions in the months before and after was stolen in the hardware store burglary three burglaries with which the instant above, detailed we believe admission of this indictments are Mylar concerned. also tes- fully justified evidence was as pertaining to tified that appellant and Bruno bought the conspiracy. the total criminal example, For loot he showed them percent “99 Mylar’s testimony was that all of the loot time.” burglaries night from the two on the Q. 1973, During how many occasions 24,1973, including October merchandise and you did your discuss best estimate— the — ammunition, guns and was sold him as a stolen merchandise and the sale of it to package appellant to and Bruno. fact Mr. Dudek? part of the merchandise stolen from A. To Mr. Dudek personally? the McFarland Hardware Store was seized premises Yes, on the of the American Q. Machine & personally. Approximately A. dozen times. A. Possibly 25 occasions.
together. len merchandise— you ments with can think of times did Seidita stolen merchandise to Mr. and Dudek? Bruno these time discussed the A. A. A. How A. A. A. 75 Q. Q. How about Q. Q. Q. And both of them Q. had dealt and Mr. Dudek things And did How How Yes, Yes, 50 times. Several, three, percent of the time sir. sir. Dudek? many many many you? with them? right you negotiate other together? pick up times did I deliver sto- times with Mr. Bruno negotiated Mr. price times did off hand. words, four times that I Bruno? and the merchandise for from Seidita you with Bruno how they arrange- price time deliver many were for just McGraw and Marinelli with you during burglaries? Mr. Dudek? or myself and McGraw. Mr. Dudek which was not stolen? time dise? Bruno merchandise during that A. A. A. On occasions it A. Through burglaries. A. Bob McGraw and Bob Marinelli. Q. Now, Q. Q. How many of the times that Q. With Q. Well, how Q. us, [*] burglaries? the two of period, or on different occasions it could be Did How Which was not stolen? roughly, I —50 times. [*] you many only the time whom did each ever show merchandise to us, [*] did times did myself and Marinelli you time, [*] you obtain merchan- only you conduct the were [*] you the three show Mr. No, knew same [*] both you sir. saw Mr. Dudek there and showed him Q. Who else picked up merchandise stolen merchandise was Mr. Bruno for Bruno and Dudek? present also? themselves, one, A. Other than no Yes; A. he was just always present. Seidita. Q. Always? Q. they pick up Did merchandise themselves? Right. A. Yes,
A. sir. Q. you Do ever recall showing Mr. Q. Both of any them? Dudek merchandise when Mr. Bruno present? was not Yes, A. sir. No, A. I don’t recall.
$
¡}:
s}:
»)e
%
sfc
many
How
of the occasions that
Q. Now,
Mylar,
Mr.
I would like to
you showed merchandise to Mr.- Bruno
your
call
attention to a time period of
and Mr.
they buy
Dudek did
it?
transactions,
before the firearms
percent
A. 99
you
please
well as after.
I would like
of the time.
questions.
refer
to that as I ask the
admissibility
We measure the
of this evi-
During
you present
did
or show
against
dence
this court’s statement of the
to Mr.
any
Dudek
other merchandise oth-
rule set forth in
v. Ring,
er than the
you
already
transactions
1975):
*8
testified about?
rule,
general
trials,
As a
jury
in
evidence
A. Yes.
of a criminal
prior
defendant’s
miscon-
Q.
many separate
On how
occasions
prosecution’s
duct is inadmissible in the
you
did
do that?
case in chief to show the accused’s bad
* *
A. To Mr. Dudek?
character or criminal propensity.
rule, however,
Either to him
or
directly
Exceptions
while he
to this
let in
present,
you
was
if
can recall.
prior
evidence of a defendant’s
miscon-
intent,
motive,
absence of
Intent
is a decision of the mind
show
duct to
knowingly do an act with
inadvertence,
identity of the
a conscious
mistake
objective
accomplishing
a specific re-
plan, pattern or
or a common
offender
purpose
sult.
Intent and
mean the same
Nemeth,
v.
scheme. United States
thing.
1970); v.
(6th Cir.
F.2d 704
Wells,
Unit-
1970);
(6th
then
PECK,
Judge,
W.
JOHN
Circuit
concur-
earlier offense of a like nature
alleged
an
ring.
determining the state of mind or in-
with which the accused did the act
majority opinion
tent
I concur in the
and in
judge
the conclusion that
the district
charged in the indictment.
did
Texas,
ty.” Spencer
Supreme
recognized
560-61,
has
that evi-
385 U.S.
1. The
Court
may
pro-
prior
“particularly
(1967).
dence of
crimes
S.Ct.
/s/ Affiant Affiant Detective by said before me to before Sworn me said Detective Sworn in subscribed and Angelo affiant De Angelo James De and James affiant subscribed February, of day this 15th presence this my my presence day February, 15th of 1974. 1974. P. MORLEY
/s/ LEO MORLEY, LEO Judge /s/ P.
Judge B
APPENDIX me an with has been filed there
Whereas copy: following is a of which the
affidavit Judge of the me, Morley, P. Leo Before MOORE, Jr., Petitioner-Appellant, Alton Ohio, per- Youngstown, of Municipal Court Ange- James De one Detective came sonally according to being duly first sworn who lo COWAN, Henry Warden, E. and says: he believes and That deposes law Respondent-Appellee. or about that on cause believe good has City day February, 15th STOVER, Edward Earl County, State Mahoning Youngstown, Petitioner-Appellant, to-wit: safes— Ohio, property Certain gas ranges, wigs—pistols—TV sets — boats — Henry COWAN, Warden, E. ovens, All at weight scales. microwave Respondent-Appellee. burglaries. being stolen in property house, described building place, In a SMITH, Eugene Robert Avenue, follows, Ravenna to-wit: 1021V2 Petitioner-Appellant, building block Ohio a cement Youngstown, attached to this siding; aluminum also with office, 121 Ravenna an street No. Warden, structure Henry COWAN, E. AM occupied by Joe Doe aka is Avenue Respondent-Appellee. Co., Bentley Ave- Supply Machine RANDOLPH, Donnie Darrell nue. Petitioner-Appellant, good reasons says that he has The affiant the afore- and does that believe to believe is still part or some thereof property said COWAN, Warden, Henry E. aforesaid, place concealed at the
kept or Respondent-Appellee. for the urgent necessity there is 76-1859, 76-1889, 76-2377 Nos. daytime. thereof to be made in the search and 76-2378. follows: is based on facts as This affidavit informant, an received from Information Appeals, United States Court of past given has reliable informa- who in Sixth Circuit. arrests and resulted in several tion Argued April 1977. convictions, has in addition said informant information on numerous given past in the Aug. Decided 1977. recovery in the occasions resulted Rehearing Rehearing En Banc Also large quantities property. stolen 5,1977. Denied Oct. Agents this es- that Federal have searched for tablishment stolen on 2/14/74 boat, their search then found a stolen Easton, on 11/26/72. Maryland from
stolen