United States v. Homer Phillips ( 1967 )

CUMMINGS, Circuit Judge.

Melsia Delaney and appellant Homer Phillips were indicted for knowingly receiving and concealing a narcotic drug in Chicago on April 24, 1964, in violation of 21 U.S.C. § 174. A jury found Mrs. Delaney and Phillips guilty. Phillips was sentenced to imprisonment for 10 years. Mrs. Delaney’s motion for a new trial was granted and she subsequently pled guilty to a lesser charge.

Pursuant to a search warrant, Federal Narcotic Agents seized a large quantity of narcotic drugs in the first floor apartment at 8004 South Yale Avenue, Chicago, Illinois, at 8:00 P.M. on April 24, 1964. These drugs were discovered in a telephone book there by Agent Hill in the presence of Mrs. Delaney. Homer Phillips was not in the apartment at the time of the search and seizure.

The evidence showed that at 2:00 A.M. on April 24, 1964, Federal Narcotic Agents Hill and Pringle observed Homer Phillips driving to South Yale Avenue.¹ Phillips parked his car on 80th Street and entered the first floor apartment at 8004 South Yale. Ten minutes later, he left the building and drove his car to the 7100 block of South Halsted Street. After parking, he entered the New Waikiki Lounge at 7112 South Halsted Street. Agent Hill observed Phillips hand his brother Tommie an aluminum foil package, which Tommie put in his overcoat pocket. Shortly thereafter, Johnny Lit-tleton drove Tommie from the tavern to the 4100 block of South Federal Street. The car was then curbed by Agents Hill and Pringle, who identified themselves as Narcotics Agents. At that point, Tommie jumped from the car and ran east through the Chicago Housing Project buildings at 4101 South Federal Street. Agent Hill pursued him and saw Tommie throw an aluminum foil package over a small fence surrounding the Edward Hartigan School. Hill apprehended Tommie in an alley in the vicinity and returned him to Littleton’s car, where Agent Pringle was waiting with Little-ton. Hill then returned to the place where Tommie had thrown the aluminum foil package and recovered it. The package contained a quantity of white powder.

Agent Pringle searched Tommie and found no other packages on his person. After Pringle and Hill brought Littleton and Tommie to the Bureau of Narcotics, the white powder in the aluminum foil package was tested and shown to contain an opiate. Tommie was subsequently indicted. This record does not show the disposition of his case.

At 8:30 A.M., Hill returned to 8004 South Yale and kept the apartment building under surveillance until Agent Pringle arrived at 3:00 P.M. with a search warrant. Pringle and Agent Prziborowski entered the front of the building. After no one answered the doorbell of the first floor apartment, Pringle knocked on the door and announced his office and intent. There being no response, Pringle forced the door open and entered. Mrs. Delaney was then walking toward Pringle from the kitchen of the apartment. At that time, Agent Hill entered the rear of the apartment. In searching the living-room, Hill picked up the Chicago telephone directory, and a manila envelope fell from it. The envelope contained a large quantity of white powder. Mrs. Delaney denied that the envelope belonged to her. She also denied knowing Homer Phillips. The white powder was later tested at the Bureau of Narcotics and was found to contain 126 grams of heroin.

Three days thereafter, Homer Phillips was arrested by these Federal Narcotic Agents at the New Bonneville Lounge in Chicago. Phillips admitted that the heroin in the manila envelope found at 8004 South Yale belonged to him. He also admitted that he had lived at the apartment, but not recently. With reference to the manila envelope containing heroin, Phillips told Agent Pringle “Well, you know, that wasn’t her [Mrs. Delaney’s] stuff that you got out of my pad. That was mine.”

Necessity for Hearing on Motion to Quash

Phillips first asserts that it was mandatory for the District Court to hold a hearing on his motion to quash the search warrant and suppress evidence. The motion pointed out that Phillips, as Mrs. Delaney’s “boy-friend”, had full right of occupancy of the first floor apartment at 8004 South Yale Avenue. His June 2, 1965, motion adopted a May 19, 1965, motion to quash filed by Mrs. Delaney. The pertinent ground of her motion was that the search warrant was improperly executed. If the testimony of Agent Pringle is credited, the entry was valid. 18 U.S.C. § 3109; Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332.

Mrs. Delaney’s motion was denied on May 24, 1965, “without prejudice”. On June 4, 1965, the District Court continued the case until June 23, 1965, “for trial and ruling on motion of defendant Phillips to quash search warrant and suppress evidence”. This contradicts Phillips’ claim that he did not renew his motion to quash and suppress because Mrs. Delaney’s similar motion had previously been denied. Also, Phillips’ seasoned trial counsel would not have adopted her denied motion if he considered the denial to be a complete disposition of the matter. Under Rule 41(e) of the Federal Rules of Criminal Procedure, it was within the District Court’s discretion to entertain the motion to suppress at the trial instead of passing upon it before trial. Since Phillips’ counsel knew that the District Court had already denied Mrs. Delaney’s identical motion to quash, it was Phillips’ obligation to renew the motion at the trial. Di Bella v. United States, 369 U.S. 121, 129-130, Note 9, 82 S.Ct. 654, 7 L.Ed.2d 614; cf. Cheng Wai v. United States, 125 F.2d 915, 916-917 (2d Cir. 1942).

Our examination of the transcript of the proceedings before the District Court reveals that defendant’s counsel was fully aware that the District Court had denied the belated motion of Mrs. Delaney without prejudice and that it would be incumbent upon him to raise the point again if he wished to press it. For example, the following colloquy occurred on September 21, 1965, when the case was called for trial:

“THE COURT: There is a motion to suppress in this, isn’t there, that I will have to hear? Has that been denied on the face of it?

MR. PINCHAM [attorney for Homer Phillips]: Your Honor denied the motion on the face of the petition.

THE COURT: Without prejudice to listen to it in the trial of the case?

MR. PINCHAM: That is right, yes.

THE COURT: So, actually it is just a matter of trying the case.

MR. PINCHAM: That is what it boils down to.”

During the November 1965 trial, neither Homer Phillips nor Mrs. Delaney raised their motions to quash the search warrant and suppress evidence. We agree with the Government that Phillips waived his right to a hearing on this motion because of failure to renew it when the District Court had granted him permission to do so. Phillips’ brief concedes that he did not pursue or develop the search warrant execution issue at the trial. It is now too late to present that issue. United States v. Chieppa, 241 F.2d 635, 637-638 (2d Cir. 1957), certiorari denied, Ivicola v. U. S., 353 U.S. 973, 77 S.Ct. 1057, 1 L.Ed.2d 1136; Butler v. United States, 153 F.2d 993, 994 (10th Cir. 1946); Morton v. United States, 79 U.S.App. D.C. 329, 147 F.2d 28, 30, Note 4 (1945), certiorari denied, 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428. Furthermore, there was no showing to warrant the granting of a hearing on the motion to suppress inasmuch as the motion contained no offer to prove that the warrant was illegally executed, nor did the prayer of the motion show why a hearing was needed.² United States v. Achilli, 234 F.2d 797, 806 (7th Cir. 1956), affirmed, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918.

Sufficiency of the Search Warrant Affidavit

Phillips next asserts that the affidavit for the search warrant did not set forth facts to establish probable cause for its issuance.³ The most recent authoritative consideration of this question appears in United States v. Ventresea, 380 U.S. 102, 108-109, [85 S.Ct. 741, 746, 13 L.Ed.2d 684.] That case teaches that such affidavits need not be elaborate or technical. The affidavits are to be tested “in a commonsense and realistic fashion”. With this test in mind, we have examined the supporting affidavit of Agent Pringle. The affidavit shows that Pringle and others had surveyed the premises at 8004 South Yale during the prior year and had observed several known narcotic peddlers entering and leaving Homer Phillips’ first floor apartment there. Pringle stated that he knew that Phillips dealt in narcotics for seven years in Chicago and in St. Louis, and that in 1956 he had been convicted in St. Louis of unlawful possession of narcotics. The affidavit then related the 2:00 A.M. April 24th episode described above.

The eases on which defendant relies antedate Ventresea. In many of them the affidavits were based on hearsay. This affidavit was based on Prin-gle’s personal knowledge and amply justified the United States Commissioner’s conclusion that there was “probable cause for believing the existence of the grounds for which the warrant was issued” (Rule 41(e) of the Federal Rules of Criminal Procedure). Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597, 598-599 (1963), certiorari denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500; Chin Kay v. United States, 311 F.2d 317, 320 (9th Cir. 1962).

Testimony Concerning Tommie Phillips

Homer Phillips also contends that the District Court should not have permitted any testimony concerning the 2:00 A.M. Tommie Phillips episode, on the ground that it revealed another crime committed by Homer Phillips. In United States v. Wall, 225 F.2d 905, 907 (7th Cir. 1955), certiorari denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816, we determined that evidence of other criminal acts is admissible when related to or connected with the crime charged. We also pointed out that such evidence is admissible to show intent or knowledge. Without objection, the District Court’s instructions concluded that both intent and knowledge are ingredients of this crime.⁴ This accords with Morissette v. United States, 342 U.S. 246, 270, 273, 72 S.Ct. 240, 96 L.Ed. 288 (interpreting Section 641 of the Criminal Code (18 U.S.C. § 641)).

The Tommie Phillips episode tended to show that Homer Phillips knew of the presence of narcotics in the South Yale Avenue apartment and intentionally committed this crime. Here the evidence of another criminal act of Homer Phillips was blended or connected with the crime of which he was accused. Therefore, there was no error in receiving evidence of the Tommie Phillips incident.

Defendant also argues that the Tommie Phillips evidence was objectionable because the defense was taken by surprise. This argument is not well-taken. During the prosecutor’s opening statement, defendant’s counse’ objected just as the prosecutor was reaching the Tommie Phillips incident. During his objection, defendant’s counsel told the Court about the Tommie Phillips matter, belying any surprise. Moreover, he cross-examined Agents Hill and Pringle in such detail that he had obviously thoroughly prepared this aspect of the case. Therefore, we consider the claim of surprise to be without merit.

Defendant also asserts that the jury might have confused two crimes: (1) the 3:00 P.M. April 24th South Yale Avenue unlawful narcotics possession for which he was indicted and (2) the criminal incident involving Tommie Phillips occurring 12 or 13 hours prior thereto. We conclude that sufficient measures were taken in the District Court to dispel any confusion between the two crimes. Thus the District Court gave the following instruction:

“Now, the indictment charges the defendant with a crime of possession or concealment of narcotics which has been heretofore defined in these instructions. Each defendant is on trial only for the crime that is charged in the indictment and you must decide whether the government has proved that he or she is guilty of that particular crime and beyond a reasonable doubt of that crime alone.”

Defense counsel did not submit any written instruction to elaborate upon that point, as required by Rule 30 of the Federal Rules of Criminal Procedure. In fact, he advised the Court that “We don’t have any instruction * * * Any error in the instruction is no longer viable. United States v. Smith, 283 F.2d 760, 763-764 (2d Cir. 1960), certiorari denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815.

It is noteworthy that during his cross-examination of Agent Hill, defendant’s counsel admitted that the Government was not trying Homer Phillips for the Tommie Phillips event. Thus the following colloquy occurred between Phillips’ counsel and Agent Hill:

“Q. Now, neither of these defendants [Homer Phillips and Mrs. Delaney] are here charged with having transferred or dispensed that object to Tommie Lee Phillips, are they? ******

A. No, sir.”

In his closing and rebuttal statements, the Assistant United States Attorney advised the jury on several occasions that it was only to pass upon the April 24th afternoon possession of narcotics at 8004 South Yale Avenue, and that the Tommie Phillips incident was only offered to show Homer Phillips’ knowledge and intent, as required by the statute.

We are satisfied that any possible confusion between the two offenses was sufficiently dispelled by the District Court and by counsel for both sides.

On the ground that there was an insufficient chain of evidence, Phillips states that the Government did not show that the package Homer Phillips gave to Tommie Phillips about 2:00 A.M. on April 24 was the same package discarded soon thereafter by Tommie. Without objection, the District Court instructed the jury that circumstantial evidence is proof of a chain of facts to be weighed by the jury. Their verdict showed that they were satisfied that the package transferred from defendant to his brother and the one found by Agent Pringle were the same package, and that it contained a narcotic drug. The uncontroverted testimony showed that Littleton’s car and person and Tommie were searched by Agent Pringle, and no aluminum foil package was found except the one Tommie had discarded at the Edward Hartigan School. Therefore, it was permissible for the jury to conclude that the package found at the school was the same package Homer Phillips had just previously given Tommie in the New Waikiki Lounge. It was the duty of the jury to weigh this evidence. Its finding against defendant was a reasonable one to draw from the evidence and consequently may not be disturbed. United States v. Wilson, 361 F.2d 134, 136 (7th Cir. 1966).

Testimony as to Previous Jail Sentence

Defendant complains of Agent Prin-gle’s direct examination testimony as to why defendant did not wish to sign ,a statement of guilt, defendant stating to Pringle “No, I don’t want to go back to jail either”. This sentence was volunteered as part of a lengthy answer of Pringle in explaining what occurred when Homer Phillips was arrested. There is no claim that the answer was deliberately elicited by the Assistant United States Attorney. In fact, this subject was raised by defense counsel’s prior recross-examination of Agent Hill, when Hill was asked “Now, when you got downtown, he [Homer Phillips] told you he wouldn’t sign a statement because he didn’t want to go to jail, is that right?”

When defendant objected to Pringle’s answer, the entire post-arrest conversation between defendant and Pringle was immediately stricken by the District Court. Also, the jury was then and later instructed to disregard any stricken testimony. In view of defendant’s own admissions and other strong evidence of guilt, “the conviction is sure that the error did not influence the jury, or had but very slight effect”, so that the verdict and the judgment should stand. Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557; United States v. Levi, 177 F.2d 827, 830, 831 (7th Cir. 1949); United States v. Haskins, 345 F.2d 111, 115-116 (6th Cir. 1965). Even where a witness testified that a defendant was No. 7 on the national list of major violators of the narcotics laws, the conviction was affirmed because the District Court promptly sustained the objection and instructed the jury to disregard the statement. United States v. Angelet, 231 F.2d 190, 192 (2d Cir. 1956), certiorari denied, 351 U.S. 952, 76 S.Ct. 849, 100 L.Ed. 1476. The brief, unemphasized reference to defendant’s having been in jail does not amount to prejudicial error in view of the prompt exclusion of the statement and the instructions given twice by the trial court.⁵

The Court has considered the remaining arguments of defendant and finds them to be insubstantial.

Affirmed.

1 . Agent LaBree accompanied Agents Hill and Pringle but was not a witness at the trial.

2 . The illegal execution point was only mentioned in one conclusory sentence in the 30-page motion to suppress. No factual allegations were made to show why a hearing would be appropriate.

3 . The Government does not claim that this point was waived below.

4 . The following are 21 U.S.C. § 174 narcotics cases in which evidence of defendant’s participation in other narcotics transactions was held admissible to show knowledge or intent: Medrano v. United States, 285 F.2d 23, 25-26 (9th Cir. 1960), certiorari denied, 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258; Bible v. United States, 314 F.2d 106, 108-110 (9th Cir. 1963), certiorari denied, 375 U.S. 862, 84 S.Ct. 131, 11 L.Ed.2d 89; United States v. Abbamonte, 348 F.2d 700, 704 (2d Cir. 1965), certiorari denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472. In Medrano and Bible the transactions were clearly more remote in time than those involved in this case.

5 . Evenson v. United States, 316 F.2d 94, 95-96 (8th Cir. 1963); see also Huerta v. United States, 322 F.2d 1, 3 (9th Cir. 1963), certiorari denied, 376 U.S. 954, 84 S.Ct. 974, 11 L.Ed.2d 973; Conner v. United States, 322 F.2d 647 (5th Cir. 1963).