Petition for a Writ of Certiorari — Price v. United States

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£. ROBERT SEAVER, ObERK

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‘ : IN THE

Supreme Court of the United States

JOUN TI MAS PRICK, Petes _— eee

. Petitioner,

rary VS.

UNITED STATES OF AMERICA, .

. ; Respondent,

aa

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT: OF APPEALS FOR |

* THE SECOND CIRCUIT

CHARLES J. McDONOUGHI,

Attorney for Petitioner,

930 Walbridge Building,

Butfalo, New York 14202.

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INDIEX. | aaa

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Opinion Below ..... paw a ne awa oa aa eae anne vee eee 1 af

— on Which —— is Invoked -.... Sivas

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Reasons for’ Granting the Writ .......... Ny re fl

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1. The Appellant John Thomas Price’ had stand-

ing to challenge the search: and seizure?:... 6 L

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en ae Rea RAP AON SNR yy Me ran ae oa NE Poe 7

Appendix 1—Opinion ........ re eee EES Ty SEVER s.39

Appendix 2—Indictment .- peda eeas iyhctseneawane 23

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Cases. é

’Alderman vy. United Wiaten 304 Ue 8. MOR cen varncuas 7

Jonés vy. United States, 562 ve SPR Sry SEES ETS me |

Simmons y. United States, 390 v. ge. pene rene a

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IN, THE

ra

‘Supreme Court of the United hoates |

JOHN THOMAS PRICE, :

eae Petitioner,

| "VS. | :

UNITED STATES OF AME RICA, :

a ; -- Respondent. .

PETITION I FOR A ae OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

+

<

The petitioner John T homas Price prays that a writ of

certiorari issue to re view the judgment: and order of the *.

United States Court ‘of Appeals for the Seeond Cirenit on

‘July 8, 1971.

Opinion Below

@ the peti-

’ tioner’ s eonvietion but reversing the cenvietion of. his

brother> William Hollis Price, another defendant, and

directing a new hearing as to the defetidant William Hollis

Price, with respect to the-céonstitutionality ef a seareh and |

seizure of evidence, originally challenged in the U.S.

District C ourt by both defendants. }

The Second Cireuit wrote an opinion affirnii

>

~A copy of fhe Second Cireuit’s opinion is appended here-

to. The opinion is as vet unreported. .

x

Grounds on Which J urisdiction i is Invoked _

Judgment of Conviction of conspiracy (Title 18, ch. 371,

U. S. Code) and interstate transportation of stolen goods’

(Title 18, See. 659). was entered against John Thomas Price :

in the U.S. District Court for the Western District of New

_York,-on March 26, 1970. jJudgiment of conviction ofthe

Ld

defendant William Hollis, Price for criminally receiving . 3

and possessing the stolen copper wire at Milford, Pennsyl-

vania (Title 18, See. 659, U. S. Code) was also entered on

March 26, 1970. °

On July 8, 1971, the United States Court of heii.

Second, Circuit, affirmed the conviction’ of -the petitioner

John Thomas Price, under both counts. The Court re-

versed and vacated the conviction of William Hollis Price,

and remanded the case, as to ge a the District ‘Court

for a redetermination as. to the gality of a search ‘con-

ducted by the Pennsylvania State, Police and an‘F. B. [.. .

agent of a building in New Milford, Pennsylvania, on Janu- -

ary 11, 1967, which resulted in the discov ery of two spools

of copper wire, identified as being part of the shipment

stolen at Buffalo, on September 19, 1966. a

Both defendants moved to suppress the evidence seized

- under the Pennsylvania seareh warrant as violative of their

constitutional rights under the Fourth and Fifth Amend-

ments. The District Court denied the motions of hoth_ de-

‘fendants.

Me

The jurisdiction. of this ( ourt: is invoked under — 28, °

‘United States C ode, See. ae

<3

seizure ?-

‘Questions Presented for\ Review

e

1) "Did the defendant John Thomas\ Price have standing

to nove to suppress ‘the Government’s evidence, seized at

the warehouse at New Milfard, Pennsylvania, as violative

of his Fourth and Fifth Amendment rights, although he

was not present aut the time and place of the search and’ ~

; _ Constitutional and Statutety Provisions Tavolved

-( ‘onstitution of the Uuite id States, y IN i:

“The right of the people to be ‘secure in their persons}

houses, papers, - ie effects, against unre: asonable

searches and seizures, ‘shall. not be violated, and ne

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to hes searched, and the persone or

things to he seized.” .

NS

Riiie 41 ( e). * Federal Rules of Criminal Procedure:

.te)* Motion for Return of Prope rty and jo Nuppress

Bridence: J

A peyson aggrie ved Jyy_an unlawful seateh and seizure

may move the district ¢ ourt for the distyjct in which the

property was seized forthe return of the property and

to suppress for. the use as evidence anything so ob-.

tained on the ground that (1) the propexty was illegal-

_ ly seized without warrant, or (2) the warrant’is. in-

~ suflicient on its. face, or (3) the property seized is not

that deseribed in the warrant, or (4) there was not

probable cause for believing the’ existence, of the

vrounds on which the warrant was issued, or (5) the

-yarrant was illerally exeeuted. The judge shall r

ceive evidence on any issue of fact necessary to #ie

dlecision of the motion. If the motion is granted the

property sIfll he-restored unless otherwise subject to—

Jawful detention and it shall not he admissible.in evi:

«lence at any hearing or trial.*. The metion to suppress

evidence may alto be made in ‘the district where the

“a

4

trial is to-be-had. ‘Che motion shall -be made before

trial or hearing unless opportunity therefor did. not

exist or the defendant was not aware of the erounds

tor the motion, but the court in its discretion may en-

. tertain the motion at the trial or hearing.”

mn

Constitution of the United ‘Bisied, Amendment V:

thane person © °° shall be compelled in any criminal

‘ase to be a witness against himself, nor be deprived of

life: > liberty or property without due. process. of

zo 8 & BY A ‘

daw:

: Statement of the Case

The defendants John Thomas Price and William Hollis

Price are brothers. They were jointly indieted with one

Frank -Mirabellt under a three-count indictment.

Count 1 charged all three defendants with conspiracy,

on September 19 and September 20, 1966, to Steal 29,772 Ibs.

of magnetie copper wire which were moving in interstate

‘commerce, and to transport the wire from Buffalo, N.Y.

to New Milford, Pa.; in Ciolation of Siofssins 1&, See. 371 U.S.

C ‘ode. .

Count 2 charged only John ‘ homas,l rice and Maribelli

with the actual theft of the copper wire from interstate

commerce at Buffalo onoSe ‘ptember 19, 1966; in violation of

Title 18, See. 659, U.S: Code. '

Count 3 charged only fhe defendant William Hollis

Price with criminally receiving -and possessing the stolen

copper wire at New Milford, Pa: on September 20, 19665 i

violation of See. 659: ; Aas

After the jury had been selected, the Pe erry Mirabelli

pleaded guilty to a-violation of See, 659 as a misdemeanor:

“Mirabelli then testified for the Government against the

Price brothers. 3

< ee

‘Fhe jury convicted the defendant John Thomas Price

under the first count, charging conspiracy, but acquitted

the defendant, William Hollis Price on that count.

John Thomas Price: was found guilty under Count Two

and William Hollis Price was found guilty under Count

Three: .

On. January 11, 1967, under a search wabiest issued by

a Pennsylvania a of the Peaee, Pennsylvania St

‘Poliee.and an F. B. 1. agent entered a warehouse at?N

Milford, Pa. and ne found. two spoolsvof aie ee fae ‘

wire, which were identified as having come from the stolen

-shipment, and: which *were admitted in evidence against

hoth defendants (Government's Exhibits Vi, $2; 33).

~The joint motion of hath defendants to suppress this evi-

denee, was denied by the District Court. On appeal, the

_ Second Cirenit reversed .this: order as to the defendant

William Hollis Price, but. held that the defendant John

Thomas Price had.no standing to contest the validity of the

search (Point TT, Opinion).

The issue raised herein was ‘considered and passed upon

hy the Second Circuit. —

|

REASONS FOR GRANTING THE WRIT

nae pee”

The. Appellant John Shei Price had standing to chal-

lenge the search and seizure.

.

“| he Court of Appeals held that Willian Hollis Price had

standing to challenge the search, because the third count

of the indietment charged him with possession of the stolen

copper wire, However, because John Thomas “Price was ~

not charged with possession, the Court held that he had no

“derivative standing to challenge the search and seizure

biel -

, .

_ The co-conspirator Harold Sutton’ testified that. John

Thomas Priee; at Buffalo, directed him to. take the stolen

load to Price's grandfather's warehouse at New Milford,

hut forgot to give him the key to the ptace. When Stutton

arrived at New Milford, he called John Thomas Price at

‘Buffalo, who told‘Sutton to go to the home of his grand-

father, George Price, to secure entry .to the warehouse

(Record 976-7).

Possession of the- stolen copper at sometime by John

Thomas Price was an essential element of both the con-

spiracy, as charged in the first count, and the larceny and

transportation, as charged in the second count of the in-

dictment.

- .

Nor was we possession the sole element: of William

Hollis Price’s alleged illegal posession. Knowledge and

‘criminal intent were also essential elements of that crime.

John Thomas Price was just as definitely a target of the

police investigation as was his brother. If the search i

fact violated constitutional rights, it violated John hime

~]

Price’s rights in exactly the same manner, and to the same

degree, as those of his brother (Alderman v. United States,

394 U. S..165, 171; Jones v. United States, 362 U. $2287).

John Thomas Price needed no possessory interest in the

searched premises in order to have standing. So long as

“possession of the seized evidence is:itself an essential ele-

‘ment of the offense”, the Goyernment is precluded from

denying John Thomas Price’s requisite standing (Sanmons

-. United States, 390 U.S. 277, 390: Jones v. United States,

nen | ,

John Thomas Price was “a person aggrieved by (the)

unlawful search and seizure” to the same degree as was his

brother (Federal Rule 41(e)). .

Conclusion -

For the foregoing reasons, the’ petition for a Writ of

( ‘ertiorar should be- granted. .

“«

Respectfully submitted,

CHARLES J. McDONOUGH,

Attorney for Petitioner,

930 Walbridge Building,

suffalo, New York 14202.

Dated: August 3, 1971.

: e Ss .

"APPENDIX 1— OPINION

UNITED STATES COURT OF APPEALS

For THE SEconD Circurr

*

Nos. 500-501—Neptember*Term, 1970.

“(Argued I December 11, 1970 ___Deéided-Futy 8, 1971.)

pe eee eo are “Docket. Nos. 5549: 235493

UNITED STATES OR AMERICA, |

eae Plaintiff-A ppellee,

V.

JOHN THOMAS PRICE, WILLIAM HOLLIS PRICE,

Defendants-Appellants.

Before: | | as

LUMBARD and FEINBERG, Cirewit Judges and

CLARIF, District Judge.* :

Appeals from judgments of conviction for -conspiracy,

theft of goods moving in interstate commerce, and unlawful

possession of stolen goods, 18 U.S. C. § 659, in the United.

- States District Court for the W estern Distriet of New York,

Curtin, J., and a jury..

Conviction of John Thomas vies ‘affirmed, Conviction

of William, Hollis Price-is vacated and remanded for fur-

ther proceedings.

* Of the Sishsict of Connecticut. sifting by designation, |

appellant, William Hollis Price.

.

Ahis time suspended.

2

€

H. Kenneth Schroeder, Jr., United States Atttorney,

Western Distriet of New York, Buffalo, New York, for.

United States of America. | ; es

Charles J. MeDonough, Buffalo, New York, for defend-

ant-appellant Jolin Thomas Price.

Thomas P. Flaherty, Buffalo, New Y ork, for defendant-

LUMBARD, Circuit Judge:

“This prosecution was initiated bya three: count indict-

ment. Count | charged John Thomas Price, his brother,

William Hollis Price, and Frank Mirabelli with-conspiracy V

to steal 29,772 pounds of magnetic copper wire from Buf-

falo while these goods were moving in interstate commerce.

(‘ount II charged John Thomas Price and Frank Mirabelli

with the stbstantive crime of theft, I8 U.S.C. § 659. Count

Hf charged William Hollis Price with receipt and posses-

sion of the stolen wire. After the jury was sworn but hefore

-trial commenced, Mirabelli, pleaded enilty toa lesser misde-

meanor charge and testified for the xovernment at trial.

Also appes ring for the government a. and James

Sutton, who were named as co-conspirators but not as de-

fendants. The defense rested at the conelusion of the gov-

ermment’s ease. John Thomas Price was convicted on both

Counts | and Ul. William Hollis. Price was convieted on

Count HT, the possession count, but the jury acquitted him

on the conspiracy charge, John Thomas Price was sen-

fenced fo four vears imprisonment, three -veats thereof

suspended, and fined $15,000. W illiam Hollis Price received

nv three vear sentence, with two years and six months of

*

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The government’s proof ‘established the following: On

September 19, 1966, Frank Mirabelli, a truck driver, arrived

in Buffalo- with the copper wire which he had pickédgup

in Port Newark, New Jersey, for delivery at’ Western

Kleetrie Company's Buffalo plant... Because he had failed .

to contact Western Electric in advance, Mirabelli was

unable to deliver his load, and was fold to return the next

day. That afternoon Mirabelli, John-'Thomas Price and the

two Suttons agreed to the thett.\ Pursuant to their plan,

Mirabelli untiooked his tractor f om the trailer load of

copper and then took the ene nu garage ostensibly for

servicing. The Suttons hooked their own tractor to Mira-

** . . Y . 7‘ <i -

belli’s trailer and hauled it to New Milford, Pennsylvania

while Frank Mirabelli spent the night at John Thomas

Price’s home for an abili. One of the Suttons drove: the’

truck while the other followed in an/ automobile. Upon

arriving in New Milford, the Suttons were to store the

-ypper-laden trailer in a kiln dry building, or warehouse,

owned by George Price, the defendants’ grandfather.

Wien they reached the kiln dry building, however, the

Suttons discovered that John Thomas Price had forgotten

to give them the keys, and they called him for instructions.

Price advised them to get the keys from George Price at

his. home just acrosk the. state line in New York, so the

_Suttons drove their car to the grandfather’s house. Arriv-

ing there, they met William Hollis Price, who told them

that George was not at home. When the Suttons advised

William that they were sent there by his brother with a-

“hot” Joad, he agreed to accompany them to New Milford

and bust the lock on the kilh dry building so that the -Sut-

tons could store the goods. |

F YY 4 a < R pital Vel Teter ore

‘ ’

.

11

a .

During the ensuing weeks, Kenneth Baker, who leased .

part of George Price’s premisés in New Milford, and a

_ James Davisongobserved copper wire being. burned on the me

“er operty. eae aaa Es

Pe eee ‘vy 10, 1967, the Pennsylvania. State Police anda

FBI agent, acting on a tip that the grandfather had a load

of copper wire stolen- from North Carolina, secured a

warrant froma Justice of the Peace to search the kiln dry

building. No “affidavits were presented to this magistrate, -

although the police did inform-him of the nature of their

‘information. A search that day failed ‘to disclose any cop-

per, but vehicles resting inside were found to. have heen

stolen. ‘Armed, with this information, the officers secured

anew search warrant, again without affidavit, and returned

té&The building on January 11 to remove the vehicles. While

this was being done, one of the officers discovered two

<pools of copper, wire whieh were identified by number (as

coming from the shipment Mirabelli had carried, aa

Since the principal claims raised by each appellant differ,

it will be convenient to treat them separately. We: affirm

the conviction of. Jolin Thomas Priée. Since we disagree

with Judge Curtin’s holdrgthat William Hollis Price did

not have standing to challenge the search made on January

10 and 11; we vacate his conviction and remand for further

proceedings on his motion to suppress.

) Ee g

William. Hollis Price ceames that the Western District

of New York was improper venue for his trial on Count

ITI relating to receipt and possession of the stolen property

hecause his possession oceurred entirely within Pennsyl-

vania. Because we thought this. presented a difficult, ques-

tion -of law whieh was not adequately treated by - both

26, | vale

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parties in their main briefs, we directed the parties, by

order dated February 25, 1971, to-further explore the issue

_in supplementary briefs. The government ‘contends that

18.U. S. C.°§ 659, whieh'contains a ‘special multi-venue pro-

vision for interstate theft, and 18 U.S.C. § 3237 (a), a gen.

oP see venue statute, clearly authorized W illiam’s trial |

in the Western District:' We find these sections more am-

hbiguous in their applieahility to the possession count than

the government would have tis believe. See United States

-, Bozza, 365 F. 2d 206, 220-22 (2 Cir. 1966) : United States

Ross, 205 F. 2d 619-(10 Cir. 19538). See also United States

ie 323 U.S. 273 (1944); Abrams, Conspiracy and

Multi-Venne in Federal Criminal’ Prosecutions: The Crime

Committed-“Formula, 9. U.C.L.A.L. Rev. 751, 775-802

(1962).

ve

‘The Venue provision of wt. s. oN oie relating to theft and pos-

Session ahierinas Bz, :

. ~The offense shall be deemed to ra ave been committed not only

in the district where the violation first occurred, but alsa in amy

district inewhich the defendant may have taken qr been in pos-

“The carrying or transporting of any such money, freight.

express, bafgage, goods, or chattels in interstate or’foreign com-

merceg knowing the. same to have been stolen, shall constitute a

separate olfetise and subject the offender to the penalties under

this section for unlawful taking, and the offense shall be deemed

_to haye been committed in any district into which such: money,

freight. express. baggage, goods, or chattels shall have been re-

- moved or into which the same shall have been brought’ by such

alfender.” i — :

tS ELS. CL. § 5237 (a), provides : ‘

“Except as otherwise expressly provided i enattment of Con-

gress, any “offense against the U nited States begun in one district

and completed in another, or committed in more than one district.

may ‘be tnquired of and prosecuted in any district in which such

offense was begun, continued, or completed. :

~ Any saa jevolring- the use of the mails, or: transportation

iui interstate, - foreign | commerce, is a continuing offense and

-except as sian expressly provided .by enactment of Con-

“yvress, nay be inquired of and prosecuted jn any district from.

through, or into which such commerce or mail matter moves.”

session ‘of the said money, baggage, goods or chatfRls. a

13°

We need not resolve this issue, however, for we find that -

any valid objection to venue William Hollis Price may have

was waived below. Although our precedents establish that

the constitutional underpinning and. importance of ‘proper

venue dictate that waiver. of objections to venue should not

the readily inferred, we have identified two situations where

a finding. ef waiver is proper: (a) when: the indictment or

statements hy the prosecutor clearly reveal this defect but

the defendant fails to object: and (bh) when, after the gov-

ernment has concluded its case, the defendant specifies

grounds for acquittal but is silent as to venue. United

States v. Riveray 388 PF. 2d 545° (2 Cir.) cert. denied, 392

U.S. 987 (1968): United States vr. Gross, 276 F. 2d 816 (2

Cir.) cert, denied, 363 U. Si-831 (1960): United States .

“Brothinan, 191 F. 20 70 (2¢ ir. 1951). |

Under either of these tests. the venue objection here

asserted was waived below. At the very outset, counsel was

on notice and was in fact aware.that the government was

proc ceding on the assumption that the possession occurred

in New Milford, Pennsylvania. Although Count TIT is’

silent concerning. the place of possession, Count IT, the con-

spiraey count, lists only three overt daets in which William

Price's name appears, and all three specify New Milford”

2 (2) On or-about the 20th day of September, 1966. the co-

conspirators. Harold B. Sutton and James Sutton had a cou-

versition with the defendant. Wintraw Honnis Prick in New

Mitford, Pennsvivania, relative to the storing of the Thagnetic .

copper Wire, , 7 :

“(8) On or about the 20th day of September: 1966, the de--

fendant Wittiam Horttis Prick accompanied the co-conspirators

ond guided them to a warehouse in New Milford, Pennsylvania.

“(9) On or about the 20th day of September, 1966, the dew

fendant, Witniam. Hotnis Prick, along with co-conspirators

| James Sutton and Harold B. Sutton, stored the magnetic cop-

\. per wire in a,warehouse in’ New Milford, Pennsvlvania.”

li should be noted that item 7 was in error because the con-

\Versation occurred in New York. but the load of stolen wire Was

in Pennsylvania at the time..

14 oa

By ‘motion ‘dated September 2, 1969, William Hollis Price

requested .a bill of particulars specifying, inter alia, the

date when and place where he conspired illegally. The.

government's response was that “the indictment herein suf-

ficiently sets forth the information requested.” Aside from

this explicit notice, defendant’ s. vounsel acknowledged in a

preliminary hearing hefore Judge ( Curtin that he was aware

‘of a “jurisdictional aspect” to the case because: there ‘was

no “allegation of anything that relates to William Hllis

- Price in the Western District of New York.” At that point,

. counsel was-arguing that W illiam” may have been given

immunity by a’ grand jury in Pennsylvania. At the con-

‘ehision .of this hearing. counsel stated that he woukd

“reserve on tte jurisdictional argument that (lie ] ‘might

wast to raise’ * pending further information regarding the

investigation eondueted by the Pennsylvania grand jury.

No venue objection: was.raised thereafter, even though a

motion for a severance was made-on January 7 (, 1970 speet-

fying numerous other gr ounds.

o\

Ww hen the government vested. its ease, William moved

for a.directed judgment of acquittal. THe argued that there

was no showing of his participation in an agreeinent, and

thus the conspiracy count musts fall as a matter of law. —

Similarly, he. contended that the proof was insufficient on

the poss@ssion count, particularly heeruse . the Government

chad failed to show that he possessed the wire on the date

charged; September 20, 1966. No’ mention was made of

-venne. Following the verdiet, a motion to set it aside as.

“contrary, to law, contrary to the ev idence, and contrary

to the weight of the evidence” was fendered. Finally the

motion was renewed at se nteneing on the’ same grounds

and also because (a) a showing of possession alotie was

: insnfficie nt to convict ; (hb) William was heing convicted of

*

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yu tt ei association, and (c) the testimony of co-conspira-

chs Harold and James Sutton, as supplemented by that

ker and Davison, was insufficient as a matter of law.

te le this specificity, no objection to venue was raised.

(bp the record-as a whele, then, defendant's waiver of

ue fdefect in venue is manifest. Despite clear notice and

wetual know ludee of the presumed defect before trial com-

menced, Willian never, moved‘ to. dismiss the indictment

on this basrs. | ee

as

We do vacate the conviction of William Hollis Price,

however, because we conclude that Judge Curtin erred in

riling that, William lacked standing to challetige the police

“officers” search of the kiln dry-Duilding in January 1967.

Count LI,-the only count on which William was convicted, °

charged him with possession of the copper wire stolen from

inferstate commerce. In Jonis vc. United State 8, 362 T..S.

257 (1960), the Court conferred standing to challenge ‘a

earch upon a persdédp tried of a nareoties offense whose |

essential element Wasspossession. Mr. Justice Frankfur-

ter there-stated:

, “The sme ‘element inthis prosecution which has

eauséd a dilemma, i¢.. that possession bath convicts |

sand confers standing, eliminates , any necessity for.a

preliminary showing of an interest in. the premises 4

searched or the property: s seized, which ordinarily is

required when standing i is challenged.” Tdavat 262.

The government advances numerous’ arguments ds to

why the clear holding of Jones should not be applied ta

this case. First, the-goyernment points out that the defen-

dant.in Jones Was legitimately onthe premises at the time

of the search auf, thus had independent standing to, chal-

lenge it. William” Hollis Price, on the other hand, was not

16

in the vicinity of the kiln dry -building at the time of the

see arch. Moreover, the search was not directed at William

Price ‘but’ rather George Price, the grandfather, on the

belief that he was concealing a shipment of copper wire

stolen trom Chapel Hill, North Carolina. The difficulty

‘with the government's position is that the holding in Jones

that the offense of possession confers standing is: clearly

designated as an inde pendent alternate: holding. Moreover,

the Court has subsequently recognized: that the two lold-

ings of Jones—that the offense of POssession confers stand-

ing and that anyone legitimately on the premises at. ah

“time of the search may challenge it—are independently va

id. Stmmonus ve United States 290 U.S. 577, 390 ee

Mancusi rv. De Forte, 392 U.S. 864, 368 n. 5 (1968).

Second, the government contends that Jones is limited

to situations where possession alone is sufficient to convict,

whereas in the mstant Case the vovernment: also diad to

show theft, interstate commerce, and defendant’s knowl-

wdees The Third Cireuit acce pted this argument in a 1964

decision, United States reoK pane rq. 86 Bd S44 (3 Cir.

1964), Cert. dented, 379 . SI 953 (1964). ‘However. in Saw.

rons ve Cited States, 30() Us . hd, tO (1968), Mr. Jus-

tice Marta for the Court interpreted: Jones as follows:

4 ia

SW hen, as in Jones, possession ofthe se ‘ized evidence

ts itself aa esse utial elemeut of the offense with whieh |

the defendant is charged, the Government is precluded ’

trom ‘denying that the defendant has the requisite

Hossessory interest to ¢hallenge fhe admission of the,

evidence.” (Emphasis added.)

The First, Fourth, Fifth and Seventh Cireuits have fol-

lowed Seinions in agin ‘the Jimited reading of Jones.

Pnited States vr. Cobb, 482 F.2d 716° (4 Cir. 1970); United

States 1. Alsenberrie, 494 F.2d 1209 (7 Cir. 1970): Glisson

.

At

€

v. United States, 406 F.2d 423, 427 (5 Cir. 1969): Mira v. -

United States, 388 F.2d 535 (1 Yir. 1968). See also Kuk/

. Umted States, 370 F.2d 20, 34-36 (9 Cir, 1966) (in banc),

Ww ats four dissenters, .as ‘the only members of that court

to reach the ne issue, rejected the limited reading

of Jones, .

We agree with these later decisions in holding that; as

stated in Simmons, there is standing where possession is

“an essential element of the ‘offense.’ To rule otherwise

would produce results which bear. no relationship: to the

policies underlying the Fourth Amendment and the veiw

expressed? in Jones that the government should ‘not be

allowed to take incdirststent positions, i.e., that a defendant

did not have possession so as to be able to challenge the

search, but is guilty of possession.

The government also argues that after Simmons, supra, -

there is no reason to continue to ale the: automati® stand-

ing rule established in Jdnes. Simmons held that when a

defendant testifies at a stippression hearing, his testimony

may not be used at trial over objection; 390 U. S. at 394.

While it is true that the dilemma between self-incrimina-

tion and exercise of Fourth Amendment rights has now

heen removed, we must reject the governnient’s contention,

heeause S?mmons explicitly'reafiirmed the automatic stand-

ing rule of Jones. Additionally, the Court’s holding that

| the government should not be allowed the advantage of a

conviction based on inconsistent positions is rplaaeap*s by

the rule announced in Simmons. v nited States v. Cobb,

32 F.2d 716, 72%-22 (4 Cir. 1970),

Finally, the government contends that unlike Jones, Wil-

liam Price was not charged With possession at the time

of the search and that this distinction compels a different

result. The indictment states that the offense occurred

LS

‘ oa ie /

“on or about the 20th day ot eo, whereas the

two searches were conducted on Janud&y 10 and 11, 1967.

This argument gives us pause, for technically the govern-

ment’s position in challenging William’s standing but

charging him with possession is not irreconcilable, and is

supported by language.in United States rv. Cowan, 396 F.2d

-83 (2 -Cir. 1968), and United States v. Allsenberrie, 424

F.2d 1209, 1213 (7 Cir. 1970). But we read Cowan, supra,

as resting on the fact that the hotel concededly assumed _

valid possession of defendant's Inggage pursuant to a lien

provided by law, and thus Cowan forfeited his rights in the

seized items, rather than upon a mere time lag between the

dat® of the offense as charged and the-datevof the search.

The government's purpose in offering the copper wire,

which was seized in Jangary 1967, was-to support the

charge of possession of that wire on September 20, 1966.

We believe this is sufficient) to confer standing. The alfer-

native for which the government argues would unduly limit.

Jones to these few situations where property is seized con-,

témporanedusly -with the offense but defendant for what-

ever reason cannot denionstrate other grounds for stand-

ing. It would also compel the defendant to admit his own-

ership at that later’date in order to secure standing.

‘Since we conclude that William Hollis Price has standing

to challenge the seareh, there remains to be considered

whether the search and Seizure were valid and whether the

admission of the seized evidence, if error, was harmless.

Although the police seeured search warrants on both dates,

it appears that no sworn affidavits were submitted to the

"issuing magistrate. Judge Curtin expressed serious reser-

vations as to the constitutional adequacy of the procédure

followed, but deelined to rule on the issue since he found.

no standing. . We think the district court should rule on

19

~ this’ question in the ‘first instance. The hearing below was

designed to determine standing and consequently it would

seem that all the evidence relevant to the merits of the sup-

pression motion may not have been oe esented and de-

veloped.

If the evidence was ile vally Seized, we find that the error

wold not be harmless.” The search uncovered Mirabelli’s

trailer and two spools of copper. wire which were definitely

tracgd to the stolen Buffalo shippent. Without this. evi:

sicatk the government has only Ahe uncorroborated testi-

niony of tWo. co-conspirators, Janiés and Harold Sutton,

10 establish William Priee’S participation.in the conceal-

meut of the stolen Buffalo shipment. Although Kenneth

Baker and James Davison did see William together with

his vrandfather, George Price, on the premises whi cop.

ver was being burned, Davison admitted ste: uling over 800-

pounds of the copper and implicated Baker in this theft.

More important, there is enough in: the record from whic he

the jury could infer that George Price was a participant in

other thefts, and that the copper seen by Baker and Davi-

yon came from this source rather than from‘the Buffalo

theft. . Even with the, seized items in evidence, the jury

clearly had difficulty, Jn “reaching its verdict. The jury

commenced its delibergtions at 3:50 P. M. on January 22,

1970 and the verdict Aas not announced until 4:30 P. M. on

the following day. Moreover, the jury did acquit William

Price on the conspiracy charge. In sum, while the govern-

ment still] has a strong case even if the seized evidence

should he suppressed, we cannot say beyond a reasonable

doubt that the jury could not have ieseats a different re-

sult. Chapman v. California, 386 U.S (1967): United

States er rel, Rosenbera e, Mancusi, ie op. 3851 (2 Cir.,

June 24, 1971). °

Ce ea

.

a

To the extent that William Price: joims in other argu.

ments advanced by John Thomas Price, we find them to be

without merit for the reasons stated below, Accordingly,

‘we vacate the conviction of William Hollis Price for a de

termination as to the legality: of the search. Lf the district’

court finds that the seareh Was proper, a new judgment of

convietion should be entered. If the seareh is found to

have been ifegal aud the resulting evidence must be sup

pressed, a new trial should: be held. The distriet court

should make findings of facet on these issues.

The arguments raised by John Thotnas Price can be dis-

posed of more briefly. We find no merit to any of them,

‘

— First John Price. seeks derivative standing to challenge

the search and Seizure because William, or George Price,

who was indicted in the Middle District of Pennsylvania,

has standing. ‘Phis will not do. He was not charged with

possession, and the search was not directed against him.

Nor has he shown any proprittary interest in tlie premises,

and there is no indieation that he was on the New Milford

property at the time of the search. As held in Alderman.

5 Pe United States, 4 cr ya 165, Hiteia “(1969), a person

Whose rights were not violated by the search is given no

special standing as a co-defendant or co-conspiratoy. —Ae-

cord, United States ea rel. Cardaio re Cassacles, slip op.

S741. at 3745 (2 Cir. June 22, 1971).

Joby Thomas Price next contends that the trial judge

should have granted defendants’ motion for a new jury

after Mirabelli pleaded guilty. Mirabelli changed his plea

‘after the jury had. been sworn bnt before trial commenced,

and then testified for the government at trial. But the.

plea was taketi outside the presence of the jury, and thus

2

—_—

. . : pines RE ee 8

\ S|

ho errok was couunitted. United States v. Kelly, 349 F.2d"

720, 767 -68 (2-Cir, 1965), ceyt. denied, 384 U.S. 947 (1966) ;

United States v. Crosby, 294 F.2d 928 (2 Cir. 1961), cert.

demied, 868°U. S. 984 (1962). Appellants ean hardly com.

pleviny threat Judge Curtin should have cautioned the jury at

the beginning of trial, for he asked counsel whether they

W ated him to say anything and they stood mute. Both .

In his opening” statement and ‘charge to the jury, Judge

Curtin cautioned that the. testimony of accomplices should

he wiven especially close and searching scrutiny, and that

the jury should consider “any demonstrated hope of le-

ajeney” or reward to be gained through testifying. “See

q wited States v. Kelly, supra, 349° F.2d at 767-68.

Defendants also argue that the trial ‘court erred in re-

_eelving testimony coneerning events, after the termination

of the. conspiracy. The evidence which was: admitted did

not concern statements made by co-conspirators after the

conspiracy: had ended. Instead the alleged error. was al-

lowing the poliee to testify regarding the fruits of their

search, and receiving the testimony of Baker and ‘Davison

concerning the birning of copper wire on the New Milford

property in the weeks after the theft. This evidence was

properly admitted against both defendants on all counts.

My ted States i, Lutwak, 344 U.S. 604, 617-18 (1953);

Vavted States vr. Bennett, 409 F.2d 888 (2 Cir.) cert. denied,

206 0, S. 852 (1969) ; : United States v. Levinson, 405 F. 2d

O71, O87 (G (‘ir 1968) eert. denied, 395 U.S. 906 (1969).

No speciak instruetions to the jury on this wana were

neressary, and none were requested. ;

The next. set of objections concerns the ‘trial judge's

handling of jury requests in the course of their delibera

tious. First. it is claimed that Judge Curtin far exceeded

the jury’s request for a charifieation of the theft charge

against John Price in Count TT. The argument is frivol-

—, oa a :

ous. <Atter Judge Curtin had breifly defined “theft” in

one sentence, the jury indicated that it still did nof under-

stand, so he properly expanded his explanation. Appel-

lant points to no errors in this supplemental charge, and

we find none. | |

Second, it ‘ix argued that the court erred in refusing to °

» re-read Mirabelli's testimony. The jury asked “to see the

testimony, of FI. Mirabelli,” but the transeript was only

pirtially completed. Judge Curtin acknowledged that he

could have: read all 94 pages of testimony to the jury,

but he felt this would give a lopsided view. Such deter-

minations are committed to the“sound discretion of the

trial judge. United States rs DePalma, 414 F.2d 394 (9

Cir. 1969). cert. denied, 3°06 U. S. 1046 (1970); United

States vr. Braxton, AAT F.2d 878 (5 Cir: 1969) ; Pmekney v.

“United States, 392 F.2d 69 (5 Cir. 1965): see United States ;

r. Desist, 884 F.2d 889 (2 Cir. 1967), aff'd. 394 U.S. 244

(1969): ef. Tyler v. United States, 361 F.2d 862° (10 Cir.

1966). ae —_—

Johyw Thomas Price’s final contention is that the, trial ro \

court erred in refusing his request to charge that the jury

‘could convict for a misdeméanor if they found that the

value of the stolen goods did not execed one hundred dol-

lars. The argument is frivolous. It was undisputed that

the 29.772 pounds of stolen. copper wire had a value of

nearly $40,000. Since there was. no. dispute on this poitt,

-the trial judge was not required to charge on the lesser

‘offense, nor would it have been proper te do so. Sansone

vr. United States, 380 TU. S. 348, 250 (1965). He did charge

, the jury to acquit if they concluded that the value of the

stolen goods did not exceed one hundred dollars.

The conviction of John Thomas Price is affirmed, The

conviction of William Hollis Price is vaeated and remanded «

for further proceedings in accordance with this opinion.

APPENDIX 2— INDICTMENT

iss iN” THE

DISTRICT: COURT OF THE UNITED STATES

For THE WESTERN DistRIct or NEw York

»

THE UNITED STATES OF AMERICA,

; Vs.

JOHN THOMAS PRICE, WILLIAM HOLLIS PRICE,

iy,

\

ba 1969 Term.

NO.

Vio. Title 18, U. S. C. Sections 371 and 659,

COUNT 1

The Grand Jury charges:

That beginning on or about the 19th day of September,-

1966, and continuing through the 20th day of September,

1966, in the Western District of New York and elsewhere.

John Thomas’ Price, William Hollis Price and Frank

- Mirabelli, the defendants, and Harold B. Sutton and James

Sutton, named as co-conspirators but not as defendants.

wilfully, knowingly and unlawfully did combine, conspire.

and agree together to commit offenses against the- United

States, to wit, to violate Section 659, Title 18,-United States

( ‘ode, by embezzling. stealing, and ‘unlawfully taking and

carrying away certain goods | and chattels consisting of

approximately, 29,772 pounds of magnetic copper wire hav

ing a valne in excess 19) ba 9000. 00 from Oneida Motor Freight

24

Company, which goods aud chattels were moving in inter-

‘state commerce as a shipment of freight, with the intent

to convert such goods and chattels to their own use; and

_ to violate Section 2314, Title 18, United States Code, by

transporting in interstate commerce from Buffalo, New

York, to New. Milford, Pennsylvania, goods, wares and

“merchandise consisting .of approximately 29,772 pounds

of magnetic copper wire having a value in excess of

49000.00, knowing the same to have been: stolen; all in

violation of Title 18,.United States*Code, Section 371.

f°

OVERT ACTS

*

At the- times diereinafter mentioned, the defendants

committed the following overt atts in furtherance of said

conspiracy and to effect the objects thereof :

(1) On or-about the 19th day of September, 1966, ih

the Western Distriet of New York, the defendants, John

Thomas Price and Frank Mirabelli, met with the co-con-

spirators, Harold B. Sutton and James ‘Sutton in Buffalo,

~New York, and hada conversation Wherein and whereby

‘the pkunning of the theft of the magnetic copper freight

shipment from Oneida Motor Freight ae Wis lis-

: \

CSS? “ad. " ‘ 2 \

(2) On or “about the 19th day of September, 1966, in

the Westérn Distriet of New York, the defendants John

Thomas’ Price and Frank Mirabelli had a conversation

wherein the v disenssed unhooking the trailer load of eop-

per. wire from the tractor truck and placing the traetor

truck in a service shop for servieing for purposes. of

. . . \ *.s . e .

covering up the defendant Frank Mirabell’s partierpation _,

in the/ planned theft of the copper load. oe

oe OS ged OG

———— \

“— 4

eat \

Nan

a

25

(3) On or about Sembetihes 19, 966, in the Western

District of New. York, the defendant John Thomas Price

gave a set of New York State,License plates and a set of

All-State Company Trucking signs to be attached to an

International Tractor to Harold B. Sutton.

(4) On or about the 19th day. of fiecoaiee: 1966, the

defendant John Thomas Price drew a map for Harold B.

Sutton to be used by him in locating a warehouse in ‘New

Milford, Pennsylvania.

(5) On ‘or about the 19th day of siiaiieas 1966,

Harold B. Sutton, a co- -conspirator, and James Sitton, a

co-conspirator, hooked up the trailer contain the magne-

tie copper wire to a’ ca es and haul ich load

away. ey

(6) On or about the 20th day of September, 1966,

Harold B. Sutton, a co-conspirator, transported the load of:

magnetic copper wire from Buffalo, New York, to New

Milford, Pennsy lvania.

“@ On or about the 20th: ‘day of September, 1966, the

co-conspirators Harold B. Sutton and James Sutton had a

- conversation with the defendant William: Hollis: Price in

New Milford, Pennsylvania, relative to the storing of the

magnetic copper wire.

(8) On- or about the 20th day of: - Septiontbes, 1966, ‘the

defendant William Hollis Price accompanied the co-con-

spirators and guided them to a warehouse in New Milford,

Pennsylvania. ; :

(9) On-or about thé 20th day of hiiindie 1966, the .

defendant, William. Hollis, Price; along. with c0-conspira-

tors James Sutton and Harold B. Sutton, stored the mag:

netic copper wire in a warehouse in-New Milford, Penn-:

sylvania.

26

QOUNT Ir

The Grand Jury further charges:

That on or about the 19th day of ‘September, 1966,>in

the Western District of New York, John. Thomas Price

and Frank Mirabelli, unlawfully, wilfully and knowingly,

and ‘with intent .to convert to their own use, did embezzle,

steal, take and carry away from Oneida, Transport Com-

pany, Buffalo, New York, chattels of a value in excess of.

~ $100.00, consisting of approximately 29,772 pounds of

magnetic copper wire which were moving as, were a part

of, and constituted an interstate shipment of freight and —

express, from Newark, New Jersey to Western Electric

Company, Buffalo, New: York; all in Violation of Title 18,

U nited States Code, Section 659.

COUNT ets Bate

The. Grand Jury further charges: )

That on -or about the 20th day, of September , 1966,

. William Hollis Pr ice, did knowingly 1 receive and have in

his possession chattels of a value in excess of $100.00, that

is, approximately 29,772 pounds of magnetic copper wire.

which had heen embezzled, stolen and unlawfully taken

and carried away, from Oneida Freight Conipany in Buf-

falo, New York, Western District ‘of New York, while mov-

ing in interstate commerce from Newark, New Jersey to

Buffalo, New York, and the said “William, Hollis Price —

- then knew the said magnetic copper wire had been stolen:

all. Nuxiotttion’ of Title 18, United ‘States Code, Section

659.

F _.. * H. KENNETH SCHROEDER, JR.,

eas . : Acting United States Attorney.

A True Billy — . es :

:

Foreman

“a

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