# Petition for Writ of Certiorari — Neville v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1495%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 423 U.S. 925 ## Text SUPREME COURT, U. & In THE Supreme Court of the United States Ocroser TERM, 1974 No. 75°56 CLARENCE EDWARD NEVILLE, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT EDWARD M. GENSON THEODORE M. BECKER 134 N. LaSalle Street Suite 306 Chicago, Illinois 60602 (312) 726-9015 Attorneys for Petitioner Midwest Law Printing Co., Chicago 60601, Financial 6-3988 INDEX PAGE thc pest Phra gai TT eo EN Oe 1 "dare omens tases oft a ELE Es 2 2 QUESTIONS PRESENTED 2 CONSTITUTIONAL AND STATUTORY PROVI- cea EMT SORE RT ee aa + STATEMENT OF THE CASE o.oo 4 REASONS FOR GRANTING THE WRIT 11 1. The District Court’s Instruction, Permitting The Jury To Find Petitioner Guilty Of Trans- porting Stolen Vehicles If The “Major Parts” Of A Stolen Vehicle Were Found To Have Been Com- bined With Parts Of One Or More Other Legit- imately Acquired Motor Vehicles Into One Rebuilt Motor Vehicle, Is Prejudicial Error Where: (A) The District Court Refused To Define, In Any Manner, The Term “Major Parts”; (B) The Instruction, Given The Circumstances Of This Case, Permitted The Jurors To Con- vict Petitioner Even If They Believed His Theory Of Innocence, Because Of The Lack Of Guidelines As To What Constitutes “Major Parts” Of A Motor Vehicle; (C) The Instruction Given In This Case Conflicts Squarely With The Law Of Other Circuits _ 11 ii Il. Petitioner’s Fourth Amendment Rights Were Violated By A Missouri Highway Patrolman’s Warrantless Seizure Of Four Trucks Petitioner Had Consigned To A St. Louis Auto Auction, Where: (A) The Trucks Were Secure In The Possession Of The Auction, And Were Thereby Effec- tively Immobilized ; (B) The Highway Patrolman, Without Any At- tempt To Obtain Judicial Approval, Seized The Trucks, Transported Them From The Auction Premises, Held Them Impounded, Inspected Them, Invited Numerous Civilians And Other Law Enforcement Officers To Jn- spect Them, Disassembled Parts From Them, Seratched Paint From Them, Ete., And Sub- sequently Introduced Evidence Derived From The Seizure At A Trial On Charges Filed Ten Months After The Seizure ...................... ILL, The Admission, In This Federal Trial, Of Evi- dence Procured By Illinois State Law Enforcement Officers Through Illegal Eavesdropping and Wire- tapping, Violated Petitioner’s Due Process Rights And The Fourth, Ninth And Tenth Amendments, Where The Illinois Law Enforcement Officers Com- mitted A Crime In Procuring The Evidence Con- trary To Explicit Illinois Statutory Prohibition _. IV. Where Possession Of Recently Allegedly Stolen Property Is Explained, No Instruction Permit- 14 16 ae iii ting An Inference Of Knowledge To Be Drawn From Possession Of Recently Stolen Property Should Be Given, And The Holding Below Con- flicts' With That Of Other Circuits Concerning The Constitutional Propriety Of Such An Instrue- ne Lo OE PORE OE TT SINC EE OR Se 17 CONCLUSION nvvehnonniernnbiegnhiint , 18 APPENDICES: Opinion and Judgment of Court of Appeals \cslantneastmisinsichateanbsaeniabiniiinimneshabinnssniapnsigniasans App. A-la Order of Court of Appeals Denying Rehear- ing and En Banc Suggestion ........ App. B-1l4a Order of Court of Appeals Staying Mandate Pending Application for Certiorari .. App. C-15a Constitutional and Statutory Provisions In- IE ctsscichietaderse App. D-17a CITATIONS Cases Barnes v. United States, 412 U.S. 837 |.) SENSES 18 Cardwell v. Lewis, 417 U.S. 583 ( 1974) 15 Chambers v. Maroney, 399 U.S. 42 RUUNITIIEL Scinicisstacinnanieitecs 15 Chimel v. California, 393 U.S. 752 ( FED Shiniecnconbeiiaiinnis 15 Coolidge v. New Hampshire, 403 U.S. 443 2 ee 15 Cooper v. California, 386 U.S. 58 (1967 ) 17 Freije v. United States, 386 F.2d 408 (1st Cir. 1967) ... 18 Gilbert v. Minnesota, 254 U.S. 325 TIONED deiidiccripicheisnesincg iv Goodman v. United States, 362 F.2d 965 (D.C. Cir. a aabin 18 Lee v. Florida, 392 U.S. 378 (1968)... ees 17 McBoyle v. United States, 283 U.S. 25 (1931)... 12 People v. Richardson, 328 N.F.2d 260 (S.C.TH. 1975) . 16 Rea v. United States, 350 U.S. 214 (1956) 0000. 17 United States v. Bishop, 4384 F.2d 1284 (6th Cir. 1970) 12 United States v. Casey, 428 F.2d 229 (5th Cir. 1970) seicilciakchasidisinnesphtngecniivalaitiapiicaisiieitabianidiiaain inthehainaieisihngapiitsteanl 13, 18 United States v. Lofty, 455 F.2d 506 (4th Cir. 1972) ... 18 United States v. Turley, 352 U.S. 407 (1957) -0.0......... 12 United States v. Wallace, 254 F. Supp. 653 (E.D. Tenn. 1965), aff'd 361 F.2d 494 (6th Cir. 1966) 202... 12 United States v. Wooten, 239 F.Supp. 123 (E.D. Tenn. UIITIEIE -sihicinsbassarscaiassdreetnslisthaipnintebisen dedidbclipncapainaclabplecigitelndptesnchancipieay 13 Statutes 8 AES) ROREERSREE PRES aetna en ne eae 12 Ns Th I ahha aad cn cchinssivinhteimncetpranoccimsabsivenns 16 I a ed gnsianes 16 NIE, 0 EEE. ssi oninitnneencasiiideininemnegebanainnars inn Illinois Revised Statutes, Chapter 38, § 14-1(b), 142 RN IPI Mcesiessccnecntonicasaniedlpanieisibintinasmanadahcssaksacctnensiaiinivainin 16 Missouri Revised Statutes, § 301.390 200000000 15 Miscellaneous Senate Report, No. 1097, 90th Cong., 2d Sess., at 98... 17 In THE Supreme Court of the United States Ocroser Term, 1974 No. CLARENCE EDWARD NEVILLE, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT The petitioner, Clarence Edward Neville, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit entered in this proceeding on May 20, 1975. OPINION BELOW The opinion of the Court of Appeals, not yet reported, appears in Appendix A hereto. No opinion was rendered by the District Court for the Eastern District of Missouri. agi JURISDICTION The judgment of the Court of Appeals for the Eighth Circuit was entered on May 20, 1975. A timely petition for rehearing with en banc suggestion was denied on June 11, 1975, and this petition for certiorari was filed within thirty days of that date. The Court of Appeals, on June 17, 1975, entered an order staying the mandate pending application for certiorari. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1). QUESTIONS PRESENTED 1. Whether the District Court’s instruction, permitting the jury to find petitioner guilty of transporting stolen ve- hicles if the “major parts” of a stolen vehicle were found to have been combined with parts of one or more other legitimately acqui~ed motor vehicles into one re- built motor vehicle, is prejudicial error where: (A) The District Court refused to define, in any man- ner, the term “major parts”; (B) The instruction, given the circumstances of this case, permitted the jurors to convict petitioner even if they believed his theory of innocence, be- cause of the lack of guidelines as to what consti- tutes “major parts” of a motor vehicle; a (C) The instruction given in this case conflicts square- ly with the law of other circuits? 2. Whether petitioner’s fourth amendment rights were vio- lated by a Missouri highway patrolman’s warrantless seizure of four trucks petitioner had consigned to a St. Louis Auto Auction, where: (A) The trucks were secure in the possession of the auction, and were thereby effectively immobilized; (B) The highway patrolman, without any attempt to obtain judicial approval, seized the trucks, trans- ported them from the auction premises, held them impounded, inspected them, invited numerous ci- vilians and other law enforcement officers to in- spect them, disassembled parts from them, scratch- ed paint from them, etc., and subsequently intro- duced evidence derived from the seizure at a trial on charges filed ten months afier the seizure? 3. Whether the admission, in this federal trial, of evidence procured by Illinois state law enforcement officers through illegal eavesdropping and wiretapping, violated petitioner’s due process rights and the Fourth, Ninth, and Tenth Amendments, where the Illinois law enforce- ment officers committed a crime in procuring the evi- dence contrary to explicit Illinois statutory prohibition? 4. Whether, where possession of recently allegedly stolen property is explained, an instruction permitting an in- ference of knowledge to be drawn from possession of recently stolen property should be given, and whether the holding below conflicts with that of other circuits concerning the constitutional propriety of such an in- struction? iscillate CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth, Fifth, Ninth and Tenth Amendments to the United States Constitution; Title 18, United States Code, Sections 2811, 23812, 2516(2), 2518(7) and 3231; Illinois Revised Statutes, Chapter 38, Sections 14-1(b), 142(a) and 14-4; and Missouri Revised Statutes, Section 301.390 are involved herein and are set forth in Appendix D. STATEMENT OF THE CASE A. The Proceedings Below Petitioner Clarence Edward Neville was indicted on seven counts in the United States District Court for the East- ern District of Missouri for violations of the Dyer Act, 18 U.S.C. $2312 (1970). Each count concerns a separate allegedly stolen truck. Following a jury trial, the petitioner was convicted and sentenced to concurrent terms of five years in prison on counts 1, 3, 5, 6 and 7; and to five years imprisonment on counts 2 and 4, consecutive to the other counts but concurrent with each other, for an aggregate of ten years, and fined $35,000.00. On appeal, because of the form of sentence, the Court of Appeals considered the suf- ficiency of evidence only as to Counts 1 and 2. | a ae B. The Evidence Petitioner owns and operates Neville Auto Sales, a sal- vage yard and rebuilding operation in Springfield, Illinois, covering forty-eight acres (Tr. 1186). Generally, petitioner buys, by check, a wrecked truck from an insurance pound or other salvage dealers, obtain- ing title to the salvage truck. Petitioner also purchases vast quantities of used and salvage parts at bulk sales and auctions, which comprise his inventory. He then replaces the wrecked cab, box, bed and front end with used replace- ments in good condition drawn from his inventory. The engines, transmissions and major running parts of the salvage trucks generally are in working order and remain in the rebuilt trucks, unless replaced from petitioner’s in- ventory of used parts. Petitioner then paints, cleans and repairs the rebuilt trucks as required and sells them at auction or at his own place of business. Petitioner installs the Vehicle Identification Number plate of the salvage truck on the door of the replacement cab, as the major parts correspond to those of the salvage truck. Accordingly, title to the rebuilt truck is under the salvage truck’s I.D. number. It is uncontested that Neville Auto Sales submitted the seven rebuilt trucks to a Missouri auto auction for sale to dealers and the public. The three trucks comprising the last three counts of the indictment were sold at the auction on March 9, 1973 (Tr. 377). The four trucks comprising the first four counts of the indictment were examined at the auction by a Missouri highway patrolman, seized without warrant, and retained for inspection over a ten-month period. a The proof was similar as to each of the seven tracks. The evidence presented at trial falls into three general catego. ries. CATEGORY OF PROOF: (1) Certain non-running, non-major parts of each of petitioner’s rebuilt trucks were identified by per sons who had owned trucks that had heen stolen from them. These witnesses were unable to iden- tify major, running parts. Petitioner aecounted for the legal acquisition of the major running parts. These seven prior owners of trucks had been chosen by state police from law enforcement agency lists of stolen vehicles (Tr. 487). For all bunt the Count 2 truck, these witnesses testified that they had viewed one of the trucks and were able to identify certain non-running, non-major parts. They were in each case unable to identify the major- ity of running, major parts. Petitioner accounted for the legal acquisition of the major running parts. [See CAT- EGORY OF PROOF (III), below.| The Count 2 truek at no time was viewed by an alleged prior owner (Tr. 495-97, 870). The parts identified and those that remain «wniden- tified as to each truck are as follows: Truck Corer 1 Covrr 2 Cover 8 Cover 4 Parte Identified Improperly closing door, drill vd holes, wiring. left tailliedt, emidge on door, ehild’s hont (Tr, 829-93). Repainted eab top (Tr 498 94), Drilled holes, alternating back up lights, tailpipe extension, horn wire and hole, front cent stain, a shoek abeorher, dente and eeratehes (Tr, 868.79) Parte Witheeses Teatified They Were Unable to Identify Engine, differential, steering meehaniom, brakes, front ens pension, rear end, frame, bem per (Tr. 479, 824-94), Bingine, frame (Tr. 495-97) Pingine, tranemission, steering wheel, brake and drum aseem hly, snepension unit, front end springs, air conditioner com preseor, tires, wheels, frame, bumper (Tr. 635-40, 877-90) A piece of tape, tailpipe modi fieation, strip of caulking on door, paint on bumper, ereo sote in bed, dente (Tr. 004.07) Pingine, transmission, differen. tinl, steering unit, snepension unit, front end honsing, rear end, wheel honsing, wheels, tires, frame (Tr. 643-45, 905 19). Court Filled dent in hood, drilled holes, missing seat belt em Hlems, glue on dashboard, hand diseoluration, key for glove compartment, drug store re eeipt (Tr. 922-27). Eingine, differential, steering wheel, brake drome, springs, front end assembly, top of the cab, rear end, wheel hensing. grill work, frame, bormper (Tr 434.36, 922-46). Count 6 Wax under hood, tailgate in sulation, wiring on underside of hood, holes in bed rail, seratches on tailgate, paint on dash (Tr, 957-61). Engine, transmission, differ. ential, steering wheel, power steering unit, brake assembly, power brake mit, front end assembly, rear springs, rear end, compressor, wheels, wheel housing, tires, frame, radio (Tr. 660-66, 960-73). Count 7 Drilled holes in bed and side of cab, dash and step bumper, worn spot on hood, wiring on sunvisor, turned antenna (Tr. 976-88). Engine, transmission, power brake nonit, brake assembly. dram housing, brakes, front end assembly, front springs, leaf springs, air conditioner, frame, tires (Tr. 672-77, 990- 95). iialll si Summarizing the above table, certain minor portions or contents of the cabs and beds' or modifications thereto were identified by these government witnesses. None were able to identify positively any major parts of any of the trucks. Petitioner accounted for the legal acquisition of the major running parts. CATEGORY OF PROOF: (IL) The Government showed certain parts of peti- tioner’s rebuilt trucks were similar to those of stolen trucks, but could not positively identify these parts as stolen. This was circumstantial evidence, in the form of testi- mony by the Missouri highway patrolman, concerning sim- ilar engine sizes, paint colors, models, options and model years (Tr. 398-402, 454, 463, 476, 480, 493-94, 501-02, 513- 14, 525-29, 535-42, 543-45). None of this evidence was con- clusive or constituted positive identification. 1 For the information of automotive laymen, as were the jurors, it might be well to define the terms ‘‘cab’’ and ‘‘bed’’, which were used frequently at trial. The ‘‘cab’’ is the enclosed compartment on a pick-up truck having a windshield at the front and seats for the driver. The term ‘‘bed’’ refers primarily in the sense used at trial to the box on a pick-up truck used for carrying goods. cli CATEGORY OF PROOF: (III) Petitioner Neville accounted for the lawful acqui- sition and use in the rebuilding process of the major and running parts of each of the seven re- built trucks. it was uncontested that petitioner Neville held legal title to the salvage trucks that constitute the foundations of the rebuilt trucks. The government itself proved these facts (Tr. 130, 172, 198, 212-16, 244-46, 251-55, 286-90, 296-305, 319-20, 333-40). Petitioner rebuilt all but the Count 1 truck, which he took in trade from a party known to him, who he had some months before helped procure a bank loan on the same truck (Tr. 1183, 1199-1204). This testimony was corrobo- rated by the bank’s assistant cashier. As to each of the Count 2-7 trucks, petitioner explained his rebuilding process (Tr. 1205-1208, 1224-27, 1238-39, 1241-42, 1243-44, 1244-47). Petitioner’s inventory of cabs, beds and other used parts in good condition is acquired primarily through bulk pur- chases (Tr. 1188-91). Petitioner proved various bulk pur- chases across the United States in which he had bought large quantities of salvage truck parts (Tr. 1253-57). Sev- eral witnesses testified to the extensive quantity of used parts in inventory at petitioner’s salvage yard (Tr. 1120, 1137, 1142). Witnesses testified they had seen petitioner rebuild trucks (Tr. 1137, 1148). One witness testified to having seen petitioner buy four to five hundred salvage trucks at one auction (Tr. 1156-57), and testified that Ne- ville Auto Parts is the largest salvage truck dealer in cen- tral Illinois (Tr. 1157). ee C. An Uncorroborated, Impeached Witness Harold Stewart, a convict whose major source of income over the past fourteen years has been derived from steal- ing motor vehicles (Tr. 718), testified that he had partici- pated with petitioner in alleged uncharged acts concerning unspecified vehicles (Tr. 721-22). He also claimed to have knowledge that parts of the Count 1 and Count 3 trucks were stolen (Tr. 739-40). He was impeached on cross-exam- ination (Tr. 761-70, 1081, 1045-46, 1050-51, 1055). Petitioner explicitly denied the truth of Stewart’s testimony (Tr. 1211-21). D. Eavesdropping Evidence In rebuttal, over objection, Decatur, Illinois Police Of- ficer Donald Brooks testified concerning portions of a tele- phone conversation between petitioner and Stewart. Brooks had overheard this conversation while in Stewart’s home on December 2, 1973. E. The Seizure of Four Trucks On April 20, 1973, the Missouri highway patrolman seized and impounded for ten months, without seerch warrant, the Counts 1-4 trucks from a Missouri auto auction. He had inspected them pursuant to the auction’s request, but had no knowledge they were stolen (Tr. 414). He observed what he thought to be indicators causing him to become suspicious, but also noted that the vehicle identification numbers on the trucks matched the titles (Tr. 11-12). He questioned petitioner, who was present at the auction, and testified that he did not suspect petitioner of the theft of the trucks (Tr. 26-27). = REASONS FOR GRANTING THE WRIT © I. THE DISTRICT COURT’S INSTRUCTION, PERMITTING THE JURY TO FIND PETITIONER GUILTY OF TRANSPORT- ING STOLEN VEHICLES IF THE ‘‘MAJOR PARTS’’ OF A STOLEN VEHICLE WERE FOUND TO HAVE BEEN COM- BINED WITH PARTS OF ONE OR MORE OTHER LEGITI- MATELY ACQUIRED MOTOR VEHICLES INTO ONE RE- BUILT MOTOR VEHICLE, IS PREJUDICIAL ERROR WHERE: (A) THE DISTRICT COURT REFUSED TO DEFINE, IN ANY MANNER, THE TERM ‘‘MAJOR PARTS’’; (B) THE INSTRUCTION, GIVEN THE CIRCUMSTANCES OF THIS CASE, PERMITTED THE JURORS TO CONVICT PETITIONER EVEN IF THEY BELIEVED HIS THEORY OF INNOCENCE, BECAUSE OF THE LACK OF GUIDE- LINES AS TO WHAT CONSTITUTES ‘‘MAJOR PARTS’’ OF A MOTOR VEHICLE; (C) THE INSTRUCTION GIVEN IN THIS CASE CONFLICTS SQUARELY WITH THE LAW OF OTHER CIRCUITS. As a result of the refusal of the District Court to define “major parts” in any manner (Tr. 1231, 1417), in the cir- cumstances of this case, the law, in effect, was whatever the jury decided it to be. The jurors were allowed to create law to fit the facts. Petitioner Neville, a volume salvage truck dealer, ac- counted for the lawful acquisition of the frames, founda- tions and running parts of the seven rebuilt trucks. The government generally proved certain minor, non-running parts and contents of the cabs and beds of the rebuilt trucks to have emanated from stolen trucks. Petitioner Neville proved that he buys huge quantities of truck parts and oii bodies in bulk sales from legitimate dealers across the United States. It certainly is possible that the allegedly stolen parts were sold to petitioner, without his knowledge of their stolen nature, as part of these bulk acquisitions. In the circumstances of this case, the jurors could have believed petitioner's account in entirety and still have been compelled to find him guilty because they believed that minor parts of cabs, beds and boxes (all non-running parts) comprised “major parts” of a truck. It is impossible to dis- cern the meaning of the verdict because of the erroneous instruction. Petitioner recognizes that convictions under the Dyer Act have been held to be proper where major parts of a motor vehicle in question are stclen, although the 18 U.S.C. § 2311 definition of “motor vehicle” makes no refer- ence to “major parts” as falling within the prohibition. Petitioner seeks no loophole in Congress’ effort, through the Dyer Act, to curb auto theft. cf. United States v. Tur- ley, 352 U.S. 407 (1957). Petitioner does, however, urge this Court to consider how far the instant case strays from accepted notions of the meaning of “motor vehicle”. cf. McBoyle vy. United States, 283 U.S. 25 (1981). In the other cases in which similar situations have arisen concerning rebuilt motor vehicles, other courts have pro- ceeded differently and with utmost caution. In United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970), while the court was able to affirm the conviction because the evidence was sufficient to show that the entire motor vehicle was transported interstate and thereafter split into two pieces found near each other, the court mandated a “major parts” instruction given in United States v. Wallace, 254 F. Supp. a a 653 (.D. Tenn. 1965), aff'd 361 F. 2d 494 (6th Cir. 1966). This Sixth Circuit instruction requires the court to charge the jury that a “motor vehicle” must have “an engine, frame and wheels,” and “that the body does not constitute a motor vehicle” within the intendment of the Dyer Act. (434 F. 2d at 1288). See also United States v. Wooten, 239 F. Supp. 123 (E.D. Tenn. 1965); United States v. Lofty, 455 F. 2d 506 (4th Cir. 1972) (truck trailer not a “motor vehicle,” but “goods”) ; United States v. Casey, 428 F. 2d 229 (5th Cir. 1970), cert. denied 400 U.S. 839 (held: the fact that parts of a stolen vehicle were found in an automobile in which defendant was riding was insufficient to support the con- viction of interstate transportation of a motor vehicle). The Eighth Cireuit Court of Appeals in this case implicitly recognized the important conflict that exists concerning “major parts” instructions by its grant to petitioner of a stay of mandate. In direct conflict with the Sixth Cireuit’s holdings, the Eighth Circuit in the instant case has approved an instruc- tion that allows the jury to decide for itself what con- stitutes “major parts” of a motor vehicle within the in- tendment of the Dyer Act. The Eighth Cireuit of Appeals below expressed its fear that the jury would be confused by guidelines as to what constitutes “major parts.” Peti- tioner contends, on the contrary, that the jury was con- fused by the total lack of guidelines. Moreover, it is impos- sible to discern whether, in fact, the jurors found peti- tioner guilty based on non-major, non-running parts, or whether they disbelieved his account of his lawful acquisi- tion of the major-running parts of each rebuilt vehicle. Therefore, the instruction given effectively vitiated peti- tioner’s defense to the charges. oa Petitioner prays this Court to resolve the important con- flict between the circuits and set forth guidelines concern- ing the propriety and contents of “major parts” instrue- tions in Dyer Act prosecutions, II. PETITIONER'S FOURTH AMENDMENT RIGHTS WERE VIOLATED BY A MISSOURI HIGHWAY PATROLMAN’S WARRANTLESS SEIZURE OF FOUR TRUCKS PETITIONER HAD CONSIGNED TO A ST. LOUIS AUTO AUCTION, WHERE: (A) THE TRUCKS WERE SECURE IN THE POSSESSION OF THE AUCTION, AND WERE THEREBY EFFEC. TIVELY IMMOBILIZED ; (B) THE HIGHWAY PATROLMAN, WITHOUT ANY AT- TEMPT TO OBTAIN JUDICIAL APPROVAL, SEIZED THE TRUCKS, TRANSPORTED THEM FROM THE AUC- TION PREMISES, HELD THEM IMPOUNDED, IN. SPECTED THEM, INVITED NUMEROUS CIVILIANS AND OTHER LAW ENFORCEMENT OFFICERS TO IN. SPECT THEM, DISASSEMBLED PARTS FROM THEM, SCRATCHED PAINT FROM THEM, ETC., AND SUBSE- QUENTLY INTRODUCED EVIDENCE DERIVED FROM THE SEIZURE AT A TRIAL ON CHARGES FILED TEN MONTHS AFTER THE SEIZURE. The Missouri highway patrolman, by seizing these ve- hicles, exceeded the scope of his lawful authority and ex- ceeded any authority the auction owner could have pur- ported to impute to him. Petitioner does not contest that the patrolman, at the request of the auction owner to whom the trucks had been consigned for the purpose of sale, had authority to inspect the trucks, Petitioner contends that, pursuant to that initial inspection, even if the patrolman observed facts that constituted probable cause for his be- lief that the trucks were stolen, the seizure and impound- a en ment of the trucks could not lawfully be accomplished with- out judicial process. There was no showing by the Government that there was any threat of the trucks being moved from the auction premises, which was secure, guarded, locked and under the control of an impartial third party. This Court has held consistently that the “general requirement that a warrant be obtained is basic to the Amendment's protection of pri- vacy, and the burden is on those seeking [an] exception to show the need for it.” Chimel vy. California, 395 U.S. 752, 762 (1969). The Government failed to meet that burden in the instant case. . The Court of Appeals below has cited only (in ef. form) Chambers v. Maroney, 399 U.S, 42, 51-52 (1970). Petitioner contends that the Chambers decision cannot support this seizure. The panel notes its opinion that the patrolman acted pursuant to Missouri statutory authority. Petitioner respectfully submits that the Missouri statute cannot be read to authorize this conduct, and further that if it can be so read it is unconstitutional. The portion of the statute omitted in the Court of Appeals’ Opinion explicitly requires the peace officer to immediately commence judicial pro- cess,” Recently, in Cardwell vy. Lewis, 417 U.S. 583 (1974), this Court distinguished its holding therein from Coolidge v. New Hampshire, 403 U.S. 448 (1971), noting that the Cool- tdge search was extensive. The seizure and subsequent in- spection in the instant case far exceeds the scope of per- missible activity defined in Cardwell, 2 Missouri Revised Statutes, Section 301.390: set forth in Appen- dix D hereto. —16-- III. THE ADMISSION, IN THIS FEDERAL TRIAL, OF EVI. DENCE PROCURED BY ILLINOIS STATE LAW ENFORCE. MENT OFFICERS THROUGH ILLEGAL EAVESDROPPING AND WIRETAPPING, VIOLATED THE PETITIONER'S DUE PROCESS RIGHTS AND THE FOURTH, NINTH AND TENTH AMENDMENTS, WHERE THE ILLINOIS LAW ENFORCE. MENT OFFICERS COMMITTED A CRIME IN PROCURING THE EVIDENCE CONTRARY TO EXPLICIT ILLINOIS STAT- UTORY PROHIBITION. The Illinois Revised Statutes’ prohibit any person, in- cluding a law enforcement officer, from eavesdropping un- less he does so with the consent of one party to the conver- sation and at the request of a State’s Attorney. A violation of these statutes carries with it criminal and civil liability. The Illinois Supreme Court recently upheld this require- ment in People v. :ichardson, 328 N.E.2d 260 (S.C. Tl. 1975). In the instant case, the Government not only used tran- scripts of unlawfully monitored conversations between Petitioner and witness Stewart, but called a Decatur, IIli- nois Police Officer to testify concerning a conversation he overheard. It has long been tecognized that, consistent with the Ninth and Tenth Amendments, persons are citizens of both the United States and the state in which they reside, Both may enact criminal statutes for mutual protection unless Congress has otherwise provided, Gilbert v. Minnesota, 254 U.S. 325 (1920). In the area of eavesdropping, the fed- eral statute welcomes state legislation, 18 U.S.C. §§ 2516 (2), 2518(7). See especially 18 U.S.C. $3281. 3 Illinois Revised Statutes, Chapter 38, Sections 14-1(b), 14-2(a) and 14-4: set forth in Appendix D hereto. —17— The question thus posed is whether the federal govern- ment can use, in federal prosecutions, evidence and the fruits thereof obtained by the criminal activity of state agents, Petitioner vigorously contends it cannot, since the power to create authorization procedures is reserved to the states and such procedures are permitted to be more strin- gent than federal rules. Senate Report, No. 1097, 90th Cong., 2d Sess., at 98; Cooper v. California, 386 U.S. 58, 62 (1967); ef. Lee v. Florida, 392 U.S. 378 (1968); Rea v. United States, 350 U.S. 214 (1956). IV. WHERE POSSESSION OF RECENTLY ALLEGEDLY STOL- EN PROPERTY IS EXPLAINED, NO INSTRUCTION PERMIT- TING AN INFERENCE OF KNOWLEDGE TO BE DRAWN FROM POSSESSION OF RECENTLY STOLEN PROPERTY SHOULD BE GIVEN, AND THE HOLDING BELOW CON. FLICTS WITH THAT OF OTHER CIRCUITS CONCERNING THE CONSTITUTIONAL PROPRIETY OF SUCH AN IN- STRUCTION. The Court of Appeals recognized that petitioner “is an experienced automobile and truck salvage dealer and re- builder who has operated for fifteen years in the Spring- field, Illinois, area, He concentrates on late model trucks and carries a large inventory of new and used parts and used trucks.” Petitioner’s defense, as reviewed above in the Statement of the Case, consisted in large part of his explanation of the lawful acquisition of salvage trucks and parts. He buys large quantities of salvage, pays with checks, and titles trucks in his own name, Certainly this is adequate expla- nation of his unknowing possession of stolen parts. —18— In the instant case, the instruction allowing the jury to infer petitioner’s knowledge that parts incorporated in the rebuilt trucks were allegedly stolen had the effect of con- verting petitioner’s exculpatory testimony in his defense into inculpatory statements, The Kighth Circuit Court of Appeals’ holding below conflicts with the holdings of the First and District of Columbia Circuits, Goodman vy, United States, 362 F.2d 965 (D.C. Cir. 1966); Freije v. United States, 386 F.2d 408 (1st Cir. 1967), See also United States v. Casey, 428 F.2d 229 (5th Cir. 1970). This Court's recent holding in Barnes vy. United States, 412 U.S. 887 (1978) is not read by petitioner as authorizing the instruction’s con- stitutionality in the circumstances of the instant case. CONCLUSION —_—— For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Eighth Circuit. Respectfully submitted, EDWARD M. GENSON THEODORE M. BECKER 134 N. LaSalle Street Suite 306 Chicago, Hlinois 60602 (312) 726-9015 Attorneus for Petitioner ox | Qo= APPENDIX A In The | UNITED STATES COURT OF APPEALS For Tue Kianru Crrevir No, 74-1708 UNITED STATES OF AMERICA, 7 Appellee, Vs Appeal from the United j \ States District Court for the Eastern Dis- CLARENCE EDWARD NEVILLE, trict of Missouri Appellant. Submitted: March 31, 1975 Filed: May 20, 1975 Before Ginson, Chief Judge, Lay, and Ross, Cireuit Judges. CGisson, Chief Judge. Defendant Clarence Edward Neville appeals his jury convictions on seven counts for violations of the Dyer Act.’ } ' 18 U.S.C, § 2312 (1970). That section reads: Whoever transports in interstate or foreign commerce a notor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. a He was sentenced by the District Court? to concurrent terms of five years in prison on counts 1, 3, 5, 6 and 7 and to five years imprisonment on counts 2 and 4, consecutive to the other counts but concurrent with each other, for an ag- gregate of ten years, and fined $85,000. On appeal the defendant challenges (1) the court’s in- struction permitting the jury to convict him for knowingly transporting rebuilt trucks containing undefined “major parts” of stolen vehicles; (2) the sufficiency of the evidence to identify the stolen trucks, to prove they were “motor vehicles,” or to prove defendant’s knowledge that they were stolen; (3) the court’s instruction permitting the jury to infer guilty knowledge from defendant’s unexplained pos- session of recently stolen property; (4) the admission of evidence of other crimes; and (5) the admission of evidence allegedly obtained unconstitutionally. We affirm. Neville is an experienced automobile and truck salvage dealer and rebuilder who has operated for fifteen years in the Springfield, Tlinois, area. He concentrates on late model trucks and carries a large inventory of new and used parts and used trucks. In March and April of 1973 he at- tempted to sell through a St. Louis auto auction seven stolen pickup trucks disguised to appear as used vehicles legitimately titled. A total of fourteen trucks were involved in the scheme, Seven “clean” trucks were legally obtained by Neville—one purchased new through an accomplice, the other six in wrecked condition. He removed their fac- torv marked frames and all other identification markings and transferred them to seven stolen trucks whose frames 2 The Honorable John K. Regan, United States District Judge for the Eastern District of Missouri, passed sentence September 13, 1974. —3a— and identification markings he had removed and destroyed. He and his employees then drove four of the trucks from Illinois to St. Louis, Missouri, and consigned them to the Floyd Hauhe Auto Auction for sale. The auction company guarantees title to all trucks sold by it and reserves the right to inspect the vehicles before they are sold. Suspicious of the legitimacy of the titles to the trucks, the manager of the auction contacted the Mis- souri State Highway Patrol. On April 20, 1973, Sergeant Mudd of the Missouri State Highway Patrol received the keys and titles to the four late model trucks and proceeded to inspect them. Inspection revealed that the frames (which contain eon- fidential or hidden identification numbers) had all been changed. Also, the federal warranty sticker was missing on each truck, even though one truck showed only 594 miles on its odometer. The trucks were seized and subsequent investigation revealed them to be stolen trucks disguised with lawfully obtained frames and markings. Three other stolen trucks previously sold by Neville through the auction in March, 1973, were similarly traced. Neville claimed to have purchased six of the seven trucks in wrecked condition and rebuilt them for sale. The seventh he claimed to have received in trade. All seven appeared to be lawfully registered in Neville’s name but none showed any signs of repair or body work; none was properly iden- tified with all factory and registration markings; none matched the description of the original truck registered with the same identification numbers; and two of the seven carried no identification numbers at all. At trial the owners of six of the seven stolen trucks positively identified them as their own, and government witness Harold Stewart, a Neville’s accomplice, admitted stealing the remaining truck and delivering it to Neville in 1972. I. The defendant’s primary challenge is to the court’s instruction permitting the jury to convict as to each count if it found that the defendant transported rebuilt trucks in interstate commerce knowing that they had been recon- stituted by combining the “major parts” of stolen vehicles with parts of other vehicles.’ Relying on United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970), and United States v. Wallace, 361 F.2d 494 (6th Cir. 1966), defendant argues that he was prejudiced by the court’s failure to define “major parts” to guide the jury in determining whether the trucks Neville was aceused of transporting contained % The court instructed the jury in pertinent part as follows: The term ‘‘motor vehicle’’ includes an automobile, truck, or any self-propelled vehicle designed for running on land but not on rails, 4 * * It is an essential element of the crime charged that the pickup trucks involved had been ‘‘stolen.”’ In determining whether the pickup trucks had been stolen, the Court in- structs the Jury that whenever one person’s motor vehicle is acquired or is thereafter possessed * * * with the intent to deprive the owner of the right and benefits of ownership, s eh motor vehicle is ‘‘stolen’’ as that term is used in these instructions. In this connection you are instructed that if you find as to any count that the motor vehicle described therein was stolen and that thereafter the major parts of said stolen motor vehicle were combined with the major parts of one or more other motor vehicles into one rebuilt motor vehicle which was thereafter transported in interstate commerce, then you may find that the rebuilt motor vehicle is the stolen motor vehicle described in said count which the defendant is charged with transporting * * *. (Emphasis added.) pe the requisite stolen parts to constitute them stolen “motor vehicles” within the meaning of the Act. 18 U.S.C. § 2311 (1970) provides that “motor vehicle in- cludes an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle designed for running on land but not on rails.” “Major parts,” however, are not independently defined in the Act. The District Court’s charge to the jury tracked the statutory definition of “motor vehicles,” but did not independently define or list their “major parts.” The Government submits, and we agree, that no further definition of the term “major parts” is required. It is sufficient to show under the statute “that only some of the major parts of the vehicle in question were stolen.” United States y. Stettmeier, 465 F.2d 436, 437 (9th Cir. 1972) (major parts of stolen aircraft). Onee the trial judge delivers a legally aceurate jury charge, as here. “the extent of its amplification must rest largely in his discretion.” United States vy. Bayer, 331 U.S. 532, 536 (1947). We find no evidence that the jury misunderstood the charge and no abuse of diseretion in this case, “Major parts” is a commonly used conversational term without a technical meaning in this statutory context: it is not a word of art. Its meaning is within the jury’s knowl- edge and experience and need not be explained. Indeed, as we have recognized in other contexts, to indulge in vari- ations of statement in order to define otherwise under- standable language might well confuse as much as help the jury. Guon v. United States, 285 F.2d 140, 149 (8th Cir. 1960). Moreover, excessive definitions of secondary, non- statutory concepts might often because of imprecise lan- guage contain technical deficiencies that for lack of com- pleteness would enable criminals to argue compliance with —6ba— the definition, though in actuality violating the statute and its spirit.’ On the contrary, the Dyer Act is not to be construed so narrowly as to disregard the paramount congressional pur- pose of curbing commercial interstate traffic in stolen motor vehicles. See United States v. Turley, 352 U.S. 407, 413-14 (1957). Without “major parts” of a vehicle being encom- passed within the definition of “motor vehicles,” enforce- ment of the Act might be foreclosed simply whenever a thief swaps stolen parts before being caught. We believe Congress intended no such impediment to enforcement. United States v. Stettmeter, supra at 437. In this case we are far from a marginal situation in which only one major part, i.e., a set of wheels, is proved to be stolen. Here, the subject vehicles themselves were all proved stolen and identified. The basic changes made by the defendant on the stolen vehicles were some repainting and substitution of the frames and clean identification plates and numbers of totally wrecked vehicles. Titles from the wrecked vehicles were then used to merchandise the stolen vehicles. Such an obvious loophole need not be pro- vided for fences and dealers in stolen vehicles. The au- * In many situations a comprehensive definition is impossible to fashion : Human language is not so constructed that it is possible to prevent people from misunderstanding it if they are deter- mined to do so, and overdefinition for that purpose is like the attempt to rid a house of dust by mere sweeping. You make more dust than you remove. If too fine a point is put upon language you suggest a still greater refinement in quib- bling. 3 J. Stephens, A History of the Criminal Law in England 305-06 (1883). —J7a— thorities cited by the defendant do not hold to the eon- trary.® Il. Neville also challenges the sufficiency of the evidence to identify the stolen trucks, to prove they were “motor vehicles,” and to prove his knowledge that they were stolen. However, after a careful review of the record in a light most favorable to the Government, granting it the benefit * In United States v. Bishop, 434 F.2d 1284 (6th Cir. 1970), the Sixth Circuit affirmed a Dyer Act conviction for tra i |The Act only] makes unlawful the transportation of a ‘“‘mo- tor vehicle.’’ It does not Separately make unlawful the trans- to have been stolen. * * * Byen considering the broad con- gressional purposes of the Dyer Act, * * * it cannot be said that an engine block taken by itself may be fairly encompassed within the wording of [the Act]. 434 F.2d at 1287. The court held, however, that the evidence as a whole was suffi- cient for the jury to find the defendant guilty and approved the inference from his admitted possession of the engine block that he was a party to the interstate transportation of the entire stolen vehicle. In United States v. Wallace, 361 F.2d 494 (6th Cir. 1966), four not appear for argument. The trial court’s Opinion recounts the jury instruction that a “motor vehicle’? must have an engine, frame and wheels capable of travelling on land and that the body alone is not a ‘‘motor vehicle’’ within that definition. The court of appeals, however, did not comment on the charge or otherwise require a definition of “‘major parts’’ as part of the jury charge. United States v. Wallace, 354 F.Supp. 653, 654 (E.D.Tenn. 1965), af}'d, 361 F.2d 494 (6th Cir. 1966). idl in of all factual inferences, Whiteside vy. United States, 3A6 F.2d 500, 502 (Sth Cir.), cert. denied, 384 U.S. 1023 (1965), we conclude that there was not only substantial, but over- whelming, evidence to support the verdict. Moody v. United States, 477 F.2d 548 (Sth Cir. 1973). The first count of the indictment concerned a red 1973 Chevrolet pickup containing a V-8 engine and most avail- able options. Its coded identification number and warranty card, however, indicated that it should have contained only a six cylinder engine and very few optional features. A truck of that description, orange in color, bearing the same iden- tification number, had in fact been purchased from a St. Louis dealer by one Evans in December, 1972. Neville claimed he obtained it from Evans in a trade. Harold Stewart, however, testified that Neville admitted he and Evans stole the fully equipped red truck and _re- placed its frame and identifiable parts with those from the less expensive orange truck purchased by Evans. Thus, Neville hoasted, they “owned” a fully equipped stolen truek with a legitimate identification number and bill of sale. At trial the true owner of the red truck positively identified his custom camper modifications and wiring installed on the truck before it was stolen. Thus, as to the first eount in the indictment, there was adequate evidence for the jury to identify the truck as stolen, to find that even rebuilt it retained enough original major parts to remain a statutory “motor vehicle.” and to conelude that Neville knew it was stolen. The second count of the indietment identified a maroon 1972 Ford pickup containing a V-8 engine. Its coded serial number, however, also represented a different truck—a green 1971 Ford pickup with a smaller engine salvaged to | k : : willie Neville after being wrecked in a fatal collision in 1972, Harold Stewart identified the maroon 1972 Ford pickup as one he had stolen for Neville from an Illinois Ford dealer in September, 1972, and delivered to Neville after removing and destroying its marked frame and identifying numbers. Thus, as to the second count, there was sufficient evidence for conviction. In sum, as to both counts there was ample evidence from which the jury could find that Neville, an experienced and successful purveyor and fence of stolen trucks and major truck parts, knowingly transported stolen vehicles in inter- state commerce. The evidence against the defendant is equally persuasive and damaging on the other five counts.* IIT. Neville also challenges the court’s instruction per- mitting the jury to conclude that he knew the vehicles were stolen by virtue of the inference raised by his unexplained possession of the recently stolen property, The Government offered proof that defendant Neville employed parts from salvage vehicles to camouflage and title stolen trucks for resale. Neville’s explanation was that he legitimately re- built wrecked trucks and claimed not to have known the trucks he sold were stolen. The court instructed the jury that possession of recently stolen property, if not satis- factorily explained, is ordinarily a cireumstance from which * Beeause we find the evidence of Neville’s guilt sufficient to Support the aggregate ten year sentence on counts one and two, and because the sentences passed on counts three through seven are effectively concurrent with those of the first two, it is un- necessary for us to consider the sufficiency of the evidence re- lating to the remaining counts, Barnes v. United States, 412 US. 837, 848 n. 16 (1973) ; United States vy. Leach, 429 F.2d 956, 960 (8th Cir. 1970), cert. denied, 402 U.S. 986 (1971) ; see Benton vy. Maryland, 395 U.S. 784, 788-90 (1969). —10a— one may reasonably infer that the person in possession knew the property was stolen, but that no such inference can be drawn if the possession is explained in a manner consistent with the defendant’s innocence." We have recognized the evidentiary rule permitting such an inference as “factually sound and necessary.” Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967). The in- struction was a correct statement of the law, see Earnhart v. United States, 417 F.2d 547 (D.C. Cir. 1969), cert. denied, 397 U.S. 1068 (1970), properly given in the instant cireum- stances. Harding v. United States, 337 F.2d 254, 256 (8th Cir. 1964). IV. At trial Neville objected to testimony by state po- lice officers describing the proper Illinois and Missouri procedures for affixing vehicle identification plates onto rebuilt trucks on the ground that the challenged testimony, by inference, accused Neville of violating state registra- tion procedures, another crime. We find no errer in the admission of the evidence. The testimony was not calculated to infer that the defendant committed another crime but was relevant to the jury’s understanding of the crime charged. Rule 401, Fed. R. Ev. ;* Babb v. United States, 351 F.2d 863, 867 (Sth Cir. 1965). Furthermore, the defendant proceeded to develop the matter more extensively in his cross-examination of one of the officers and cannot now be heard to complain that the Government led the jury * The challenged instruction is substantially similar to that ap- proved in Barnes v. United States, 412 U.S. 837, 840 n. 3 (1973). ® Although the Federal Rules of Evidence, Pub. L. No. 93-595 (Jan. 2, 1975), are not effective until July 1, 1975, we feel it ap- propriate to cite them as a primary source of evidentiary rules where not contrary to caselaw. » TAS te aie tlh ; —lla— astray by first mentioning it. Moreover, the defendant failed to object to being cross-examined by the Government as to his own knowledge of the lawful identification proce- dures. His objection to being cross-examined regarding threats made against government witness Stewart and Stewart’s alleged admission of perjury is similarly without merit. It also passed without defense objection at trial and merely developed material which was introduced by the defendant in his direct testimony. It was relevant for his impeach- ment, Rule 611(b), Fed. R. Ev.; United States vy. Olsen, 487 F.2d 77, 82 (8th Cir. 1973), cert. denied, 415 U.S. 993 (1974), and was well within the discretionary limits for cross-examination. United States y. Vaughn, 486 F.2d 1318, 1321-22 (8th Cir. 1973). V. The defendant argues that the warrantless seizure of the four consigned trucks from the St. Louis auction by Sergeant Mudd of the Missouri State Highway Patrol on April 20, 1973, was unreasonable and violated his Fourth Amendment rights. He does not, however, challenge the Officer’s initial inspection of the trucks at the auction. We find Officer Mudd’s subsequent seizure of the trucks to have been reasonable, based upon probable cause to believe that they were stolen, and find no error in the admission of evidence developed from them. Neville surrendered possession of the trucks to the auction for public sale and “assumed the risk” of official examination. Frazier y. Cupp, 394 U.S. 731, 740 (1969). As previously noted, the auction company guaranteed title to all vehicles it sells and reserved the right to inspect the trucks before selling them. It therefore had requisite con- trol over the vehicles to request official inspection and to —12a— consent to their search. Thereafter, Officer Mudd’s seizure of the vehicles was reasonable under the circumstances revealed by the officer’s unchallenged initial inspection. Cf. Chambers v. Maroney, 399 U.S. 42, 51-52 (1970). The trucks’ federal safety stickers and identification plates were loose and appeared not to have been factory attached; there were discrepancies between the trucks’ actual engines, op- tions and color characteristics and the characteristics de- scribed by their coded serial numbers; the trucks seized were easily moveable and situated at a public auction; and the officer had a statutory duty to impound them.’ The defendant also challenges the admission of evidence of overheard telephone conversations consisting of testi- mony of government witness Stewart recalling telephone conversations he had with the defendant, government cross- examination of the defendant using transcripts of moni- tored telephone conversations, and testimony by a Decatur, Illinois, police officer reporting a telephone conversation between Stewart and the defendant that he overheard with Stewart's consent. The defendant argues that the officer * Mo. Rev. Stat. § 301.390 (1969) provides in pertinent part: 1. No person shall sell, or offer for sale, or shall own or have the custody or possession of a motor vehicle * * * on which the original manufacturer’s number or other distin- guishing number has been destroyed, removed, covered, al- tered or defaced, and no person shall sell, offer for sale, own or have the custody or possession of a motor vehicle * * * having no manufacturer’s number or other original number, or distinguishing number. 2. Every peace officer who has knowledge of a motor ve- hicle * * * the number of which has been removed, covered, altered, destroyed or defaced, and for which no special num- ber has been issued, shall immediately seize, |and] take pos- session of such motor vehicle * * *. SEC ae MEER INES SE Mla LMR DR dS OMENS huis id ies nts hea eibs Si la A ae a ed —1l3a— violated the Illinois anti-eavesdropping statute, Ill. Rev. Stat. ch. 38, §§ 14-1 and 14.2 (1973), in overhearing the con- versation, and that admission of any of the telephone evi- dence was constitutionally improper. The transcripts of the conversations, however, were not admitted into evi- dence. We find no error in the admission of any of the evidence of telephone conversations between defendant Neville and government witness Stewart. Gathering evidence by over- hearing a telephone conversation with the consent of one party does not violate the other party’s Fourth Amend- ment rights. United States v. White, 401 U.S. 745, 752 (1971) (plurality opinion). Misplaced expectations of confidence or trust in an accomplice are not constitutionally protected. Hoffa v. United States, 385 U.S. 293, 302 (1966). Moreover, wiretap or other evidence obtained without violating the Constitutional or federal law is admissible in a federal criminal triai even though obtained in violation of state law.”° On Lee v. United States, 343 U.S. 747, 754-55 (1952); United States v. Keen, 508 F.2d 986, 989 (9th Cir.), petition for cert. filed, 43 U.S.L.W. 3374 (U.S. Dec. 26, 1974) (No. 74-806). The judgments of conviction are affirmed. A true copy. Attest: Clerk, U.S. Court of Appeals, Eighth Circuit. 70 We intimate no view of the propriety of the Decatur, Illinois, police officer’s conduct under state law. ey Sa APPENDIX B In Tue UNTITED STATES COURT OF APPEALS For Tur Eieutu Cirevir No. 741708 September Term, 1974 THE UNITED STATES, Appellee, Appeal from the United bs States District Court ( for the Eastern Dis- CLARENCE E. NEVILLE trict of Missouri Appellant. The Court having considered petition for rehearing en bane filed by counsel for appellant, and being fully advised in the premises, it is ordered that the petition for rehear- ing en bane be, and it is hereby, denied. Considering the petition for rehearing en bane as a peti- tion for rehearing, it is ordered that the petition for re- hearing also be, and it is hereby, denied. June 11, 1975 ee —lia— APPENDIX C _ United States Court of Appeals For the Eighth Circuit St. Louis, Mo. 63101, June 17, 1975 Robert C. Tucker, Clerk Mr. Edward M. Genson 134 North LaSalle Street, Suite 306 Chicago, Hlinois 60602 Mr. Theodore F, Schwartz 7701 Forsyth Clayton, Missouri 63105 Hon. Donald J. Stohr U.S. Attorney St. Louis, Missouri Mr. William D. Rund, Clerk U.S. District Court St. Louis, Missouri Re: No. 741708. The U. S. v. Neville. Dear Sirs: Enclosed herewith to each of you is copy of order entered by us today in the above case at the direction of the Court. Very truly yours, /s/ Robert C. Tucker, Clerk —16a— In THE UNITED STATES COURT OF APPEALS For THe Eiegutru Circuit No. 74-1708 September Term, 1974 THE UNITED STATES, Appellee, vs. CLARENCE E. NEVILLE, Appellant. On motion of Appellant, it is now here ordered that the issuance of the mandate herein be, and the same is hereby, stayed for a period of thirty days from this date. If within that time there is filed with the Clerk of this Court a cer- tificate of the Clerk of the Supreme Court of the United States that a petition for writ of certiorari has been filed, the stay hereby granted shall continue until the final dis- position of the case by the Supreme Court. —l7a— APPENDIX D 7 CONSTITUTIONAL PROVISIONS INVOLVED Constitution of the United States of America AMENDMENT [TYV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af- firmation, and particularly describing the place to be search- ed, and the persons or things to be seized. AMENDMENT [V.] No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. AMENDMENT [IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. AMENDMENT [X.] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people. eitiitlisy STATUTORY PROVISIONS INVOLVED Federal 18 U.S.C. § 2311: Definitions As used in this chapter: “Aircraft” means any contrivance now known or here- after invented, used, or designed for navigation of or for flight in the air; “Cattle” means one or more bulls, steers, oxen, cows, heifers, or calves, or the carcass or carcasses thereof ; “Money” means the legal tender of the United States or of any foreign country, or any counterfeit thereof ; “Motor vehicle” includes an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle designed for running on land but not on rails; “Securities” includes any note, stock, certificate, bond, debenture, check, draft, warrant, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate; certifi- cate of interest in property, tangible or intangible; instru- ment or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchan- dise; or, in general, any instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing, or any forged, counterfeited, or spurious representation of any of the foregoing; “Tax stamp” includes any tax stamp, tax token, tax meter imprint, or any other form of evidence of an obliga- = —19a— tion running to a State, or evidence of the discharge there- of ; “Value” means the face, par, or market value, whichever is the greatest, and the aggregate value of all goods, wares, and merchandise, securities, and money referred to in a single indictment shall constitute the value thereof. June 25, 1948, c. 645, 62 Stat. 805; Oct. 4, 1961, Pub.L. 87-371, 75 Stat. 802. 18 U.S.C. § 2312: Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, ¢. 645, 62 Stat. 806. 18 U.S.C. § 2516(2): Authorization for interception of wire or oral communica- tions o oe * (2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdi- vision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approv- ing the interception of wire or oral communications, may apply to such judge for, and such judge may grant in con- formity with section 2518 of this chapter and with the ap- plicable State statute an order authorizing, or approving the interception of wire or oral communications by investi- gative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has pro- vided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or deal- ing in narcotic drugs, marihuana or other dangerous drugs, — or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, desig- nated in any applicable State statute authorizing such in- terception, or any conspiracy to commit any of the forego- ing offenses. Added Pub.L. 90-351, Title IIT, § 802, June 19, 1968, 82 Stat. 216. 18 U.S.C. § 2518(7): Procedure for tnterception of wire or oral communications (7) Notwithstanding any other provision of this chap- ter, any investigative or law enforcement officer, specially designated by the Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— (a) an emergency situation exists with respect to conspiratorial activities threatening the national secu- rity interest or to conspiratorial activities characteris- tie of organized crime that requires a wire or oral communication to be intercepted before an order au- thorizing such interception can with due diligence be obtained, and (b) there are grounds upon which an order could be entered under this chapter to authorize such inter- ception, may intercept such wire or oral communication if an ap- plication for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to oceur. In the absence of an order, such interception shall immediate- ly terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is ter- minated without an order having been issued, the contents —2la— of any wire or oral communication intercepted shall be treated as having been obtained in violation of this chap- ter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application. 18 U.S.C. § 3231: District courts The district courts of the United States shall have orig- inal jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. Nothing in this title shall be held to take away or im- pair the jurisdiction of the courts of the several States under the laws thereof. June 25, 1948, ¢. 645, 62 Stat. 826. State Illinois Revised Statutes, Chapter 38, §§ 14-1(b), 14-2(a) and 14-4: 14-1. Definition.) (b) Eavesdropper. An eavesdropper is any person, including law enforce- ment officers, who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article. * . > 14-2. Elements of the Offense.] A person commits eavesdropping when he: (a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State’s Attorney; or — 14-4. Sentence.) Eavesdropping is a Class A misde- meanor. Amended by P.A. 77-2638, § 1, eff. Jan. 1, 1973. [Note: Legislation in Illinois has been introduced to in- crease the classification to a felony.] Missouri Revised Statutes, Section 301.390: “1. No person shall sell, or offer for sale, or shall own or have the custody or possession of a motor vehicle, trailer or motor vehicle tire on which the original mann- facturer’s number or other distinguishing number has been destroyed, removed, covered, altered or defaced, and no person shall sell, offer for sale, own or have the custody or possession of a motor vehicle or trailer having no manu- facturer’s number of other original number or distinguish- ing number. “2. Every peace officer who has knowledge of a motor vehicle, trailer or motor vehicle tire, the number of which has been removed, covered, altered, destroyed or defaced, and for which no special number has been issued, shall immediately seize, take possession of such motor vehicle, trailer or motor vehicle tire, arrest the supposed owner or custodian thereof, and cause prosecution to be begun in a Court of competent jurisdiction.” a veers Cote) aaah NS 8 BY il --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1495%3A1. Public record. Not legal advice.