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United States v. Ziak

April 20, 1966

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN JOSEPH ZIAK, DEFENDANT-APPELLANT



Schnackenberg, Castle and Swygert, Circuit Judges.

Author: Schnackenberg

SCHNACKENBERG, Circuit Judge.

John Joseph Ziak, defendant, appeals from a judgment order, based on a jury verdict, convicting him of violations of ยง 174 Title 21 United States Code as amended by the Narcotic Control Act of 1956, as charged in counts 1 and 2 of an indictment. Defendant was committed to custody of the attorney-general for a period of eight years on each of said counts, said sentences to run concurrently with each other.*fn1

1. Count 1 charged a conspiracy between defendant and Sylvester Moore, who was not named as a defendant herein, to unlawfully traffic in narcotics, and charged several overt acts in pursuance thereof, while count 2 charged Ziak with unlawfully trafficking in narcotics on or about April 24, 1964.

It is the contention of Ziak that the evidence offered by the government to establish its case does not in fact prove a conspiracy or that Ziak was a conspirator.

The government, relying on the principle that after a verdict of guilty this court will view the evidence in the light most favorable to the government, although the testimony of defendant may not be ignored, asserts that the evidence revealed a conspiracy between defendant and Moore as charged. We have carefully considered this evidence. We hold that, viewed as a whole, it was ample to sustain the jury's verdict that defendant and Moore were engaged in an illegal conspiracy for the sale of narcotics.

2. During the trial Ziak's counsel called to the attention of the district court the fact that Ziak was arrested as a result of a complaint based on transactions occurring about four months prior to the arrest. Ziak was arrested as he alighted from a Ford panel truck. He was searched and placed by the truck with his hands on the side of the vehicle while narcotics agent Kennedy searched the truck, finding above the sun visor a brown sack containing narcotics.

From the testimony it appears that an arrest warrant was obtained shortly after the agents received a statement from Moore in 1964. The contents of the statement were not made a part of the record.

While counsel for Ziak admits that the law is that an automobile may be searched without a search warrant where "there is strong reference to mobility and urgency", he says that here Ziak was in custody and there was no showing of mobility or urgency.

Ziak's counsel distinguishes Armada v. United States, 5 Cir., 319 F.2d 793 (1963) on the ground that in that case the facts revealed that the agents knew of the presence of narcotics in a certain suitcase. The agents knew that Armada took the suitcase out of a hotel and when approached by agents he admitted the car was his and that that suitcase was in its trunk. There being no warrant for Armada, he could have driven the car away unless it was seized. Hence, counsel says, the court at 797 stated:

"Before making the search of the automobile, the agents had information which constituted probable cause to believe the suitcases contained cocaine, and Armada had admitted the suitcase 'is right there in the car.' Unless Armada was arrested or the car was seized, the automobile could readily be moved."

Counsel says that no such facts existed with reference to Ziak.

Defense counsel also relies on Sirimarco v. United States, 10 Cir., 315 F.2d 699 (1963), dissenting opinion at 702, cert. denied, 374 U.S. 807, 83 S. Ct. 1696, 10 L. Ed. 2d 1032 (1963).

On the other hand, the government points out that Ziak was arrested as he alighted from his truck and that he does not question the validity of the arrest. It says the search was conducted immediately incident to the arrest. We hold it was therefore valid. Carroll v. United States, 267 U.S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543 (1925); United States v. Walker, 4 Cir., 307 F.2d 250, 252 (1962); ...


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