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United States v. Rugendorf

April 30, 1963

UNITED STATES OF AMERICA, APPELLEE,
v.
SAMUEL JOSEPH RUGENDORF, APPELLANT.



Author: Duffy

Before DUFFY and KNOCH, Circuit Judges, and MERCER, District Judge.

DUFFY, Circuit Judge.

Defendant was tried before a jury and was convicted of receiving, concealing and storing goods, wares and merchandise of a value in excess of $5,000, knowing the same had been stolen and transported in interstate commerce in violation of Section 2315, Title 18 United States Code. The goods were identified in the indictment as 81 fur pieces which had been stolen in Shreveport, Louisiana and Mountain Brook, Alabama, and which had moved in interstate commerce from Shreveport and Mountain Brook to Chicago, Illinois.

On this appeal, defendant argues (1) the evidence was insufficient to sustain the verdict of guilty; (2) the trial court erred in overruling defendant's motion to suppress the evidence, and (3) the trial court erred in refusing to require the government to reveal the source of the information contained in the affidavit, pursuant to which a search warrant was issued.

Defendant and his wife owned and occupied a two-story brick, single family dwelling in the City of Chicago. The basement was partitioned into two sections by a wall running east and west. The rear or south part contained two smaller rooms, one of which was a laundry and furnace room, and the other a general storage room. In the northern section, there was a nicely finished recreation room. At the east wall of this room there was a business-type desk with a telephone. In the center of the room was a card table and sewing machine. There were closets built into the north wall. During the search, Agent McCormick opened the doors to these closets, and in the last one discovered 81 furs hanging on individual wire hangers which hangers were on a rod that extended the length of the closet. The labels had been torn out of the garments. There were, in fact, 82 fur pieces, but Mrs. Rugendorf, the wife of defendant, identified one of the fur pieces as belonging to her.

Defendant's wife testified that she and her husband left Chicago on the evening of February 17, 1962, for a vacation in Florida and Nassau; that they returned to Chicago on March 4, 1962; that during the period of their absence, her brother-in-law, Leo Rugendorf, her son, her sister-in-law and one Roskin all had keys to the house. She testified the defendant did not go into the basement between March 4, and March 22. The defendant gave similar testimony and in addition testified he had no occasion prior to February 17, 1962, to go to the basement or to look at the closets. There also was testimony that defendant's brother, Leo, was a well-known "fence."

There is no dispute that on March 22, 1962, agents of the Federal Bureau of Investigation found in the basement of defendant's home, the loot of two burglaries, one of which occurred at Shreveport, Louisiana, December 4 and 5, 1961, and one at Mountain Brook, Alabama, on February 10, 1962.

There were a number of conflicts in the evidence which the jury was entitled to and did resolve. To illustrate, defendant testified that before he left on his vacation, he gave the key to his house to his brother Leo and that the key had not been returned. Agent Lee testified that when defendant was arrested he stated that Leo came into defendant's place of business shortly after he had returned from Florida and returned the key to him.

The situation in the case at bar is somewhat similar to that in United States v. Mann, 7 Cir., 108 F.2d 354, 358, where we said: "Here, the jury rejected defendant's professions of innocence in the face of stubborn facts plainly pointing to his guilt."

Knowledge of the stolen character of the goods may be established by circumstantial evidence. United States v. O'Brien, 7 Cir., 174 F.2d 341; United States v. Allegrucci, 3 Cir., 258 F.2d 70.

We hold that the evidence, viewed in the light most favorable to the government, clearly supports the conviction of the defendant.

Defendant argues that the affidavit which was the basis of the issuance of the search warrant was based on hearsay information and therefore insufficient. Defendant relies upon Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697.

Agent Moore of the F.B.I. swore that an informer who had furnished reliable information in the past reported to affiant that he had seen 80 fur garments in defendant's basement a few days previously, describing them as mink, otter and beaver jackets, with labels removed, and that the informant had been told the furs were stolen.

We think defendant's reliance upon Jones v. United States, supra, is misplaced. We quote the following from the opinion in that case (362 U.S. pages 270-271, 80 S. Ct. at pages 735-736, 4 L. Ed. 2d 697): "* * * In a doubtful case, when the officer does not have clearly convincing evidence of the immediate need to search, it is most important that resort be had to a warrant, so that the evidence in the possession of the police may be weighed by an ...


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