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United States of America, Appellee, v. Thaddeus Bigos, Defendant-appellant.united States of America, Appellee, v. Dennis Raimondi, Defendant-appellant
United States Court of Appeals, First Circuit. - 459 F.2d 639
Heard March 6, 1972.Decided May 1, 1972
Joseph C. Delcore, Everett, Mass., and Anthony W. DiCecca, Somerville, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for defendants-appellants.
Frederick W. Read, III, Atty., Dept. of Justice, with whom Lincoln C. Almond, U.S. Atty., and Sidney M. Glazer, Atty., Dept of Justice, were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
On the night of January 4, 1971, a truck belonging to Merit Dress Delivery Co., Inc. and traveling between Fall River, Massachusetts, and Madison, Connecticut, was hijacked in Providence, Rhode Island. Defendants Raimondi, Bigos, McDonald and four others were indicted for hijacking the truck (Count I) and for conspiracy to do the same (Count II).1 McDonald's trial was severed. Bigos and the four others were convicted on both counts and Raimondi was convicted on the conspiracy count alone. Only Bigos and Raimondi are before us here.
The trial transcript is voluminous and we relate only those facts necessary for the resolution of these appeals. The government's principal witness was the co-conspirator McDonald. In addition to relating the details of the January 4 hijacking, he testified that the defendants met several times between July 1970 and January 1971 to plan the crime and that they intended to take a truck on December 22, 1970, but their plan was aborted when they were stopped by the Rhode Island State Police for a routine check.
On January 8, four days after the hijacking, the F.B.I. conducted a search of the property at 99 Tell Street, Providence, Rhode Island, and discovered the stolen clothing and piece goods. Five separate warrants, each designating a distinct portion of the Tell Street property,2 were simultaneously issued on the basis of a single affidavit. The defendants contend that the warrants were issued without probable cause and that if probable cause existed at all, it existed only for a search of the first floor apartment. Thus they argue that the issuance of five warrants is equivalent to an impermissibly general search warrant. The affidavit in support of the warrants is based principally on information given by the driver of the hijacked truck.3 Applying the twopronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), we find that the instant affidavit contains sufficient facts for a neutral magistrate to conclude both that the informant, Furtado, was credible and that he obtained his information in a reliable manner. With respect to the substance of Furtado's story, the fact that he was an eye-witness to the unloading of the truck is sufficient. There is also evidence of his credibility. Initially we note that we are dealing not with a "faceless informer," Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (Justice Douglas dissenting), but with a named individual who drove the hijacked truck. Part of his story was corroborated, and whether one views him as an innocent victim or a culpable participant, common sense dictates that there is sufficient reason to credit his identification of the Tell Street property. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965); see also United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (Opinion of Chief Justice Burger, concurred in by Justices Black, White, and Blackmun). Since Furtado saw the goods going into the first floor apartment, there was probable cause to search at least that area.
Count I charged violation of 18 U.S.C. Secs. 2 and 659 (1970). Count II charged violation of 18 U.S.C. Sec. 371 (1970)
The five warrants designated the following areas: (1) the basement, (2) the first floor, (3) the second floor, (4) the third floor, and (5) the yard and outbuildings
The affidavit provides in relevant part as follows:
"I, MARTIN P. CONLEY, a Special Agent for the Federal Bureau of Investigation, upon oath, make affidavit and say:
(1) That in the course of my official duties I have investigated the theft from interstate shipment of a truck, owned by Merit Dress Delivery Co., Inc., . . . .
(2) I have personally interviewed the driver of said truck, Alfred Furtado, of 1152 West Main Road, Portsmouth, R. I., who stated to me that on the evening of January 4, 1971, he drove said truck from New Bedford, Massachusetts, enroute to Madison, Connecticut, via Interstate Routes 195 and 95, and that while enroute, on Route 95 in Providence, a blue Chevrolet automobile, which he recognized as belonging to Edgar McDonald, a mechanic at the Merit Dress Delivery Co., Inc. terminal in Fall River, Massachusetts, who was known to Furtado, pulled in front of said truck and forced it to stop. The said McDonald, by threats, forced Furtado to exchange places with him and to follow the truck now driven by McDonald, in McDonald's car, to a three-story wooden building on Federal Hill in Providence, R. I., where two unknown men assisted McDonald in transferring part of the load of said truck through a first floor kitchen window. Furtado stated to me that he saw woman's pantsuits and children's dresses, among other items, transferred from his truck into said building at this time. Furtado was then instructed to drive the truck and to follow McDonald's car to a rural location about 25 minutes away from said wooden building where the truck was abandoned by him on instructions of McDonald.
(3) While at the wooden building, one of the unknown men stated, substantially, that his sister lived 'upstairs.'
(4) On January 8, 1971, Furtado was driven to Federal Hill by your affiant and after viewing the area identified the building at 99 Tell Street, Providence, as the place into which part of the load of his truck was transferred on January 4, 1971.
(5) On the evening of January 7, 1971, McDonald told Furtado at said terminal in Fall River that the goods would be removed from the premises 'next week.'
(6) Furtado further stated that on December 22, 1970, McDonald made an attempt to steal a truck then driven by Furtado, but that such attempt was foiled when the truck was stopped by the Rhode Island State Police. I have made independent inquiry and have confirmed that said Police did in fact stop such truck on such date.
(10) Based upon my investigation, I have reason to believe and do so believe that the said clothing and textile material referred to in Appendix A is presently located upon the premises located at 99 Tell Street, Providence, R. I."
"When I went to the Grand Jury I came back that night. I received a telephone call from [one of the codefendants] asking me if I went to the Grand Jury. I told him 'No.' He said, 'Well, there was a young girl on the Grand Jury who told her boy friend and he went up and tell Danny.' So I said, 'I didn't go.' And he said, 'Well, we all go through this once in a while.' I said, 'Yes, but I didn't go.' Then he hangs up. Then I got a call back when [another codefendant] was sitting in the kitchen and Danny Raimondi said, 'God help you and your children if you testified in the Grand Jury."'
The termination of a conspiracy is usually an issue to be determined on the facts of the individual case, United States v. Sarno, 456 F.2d 875 (1st Cir. 1972), and is properly a jury question. The court's charge that "[S]tatements of any conspirator, which are not in furtherance of the conspiracy, or made before its existence, or after its termination, may be considered as evidence only against the person making them" was sufficient in the absence of a request for something more specific