Swygert and Fairchild, Circuit Judges, and Will,*fn1 District Judge. Will, District Judge (dissenting in part).
The defendant, William Mitchell Hood, was charged in a three-count indictment with knowing receipt and concealment of stolen motor vehicles in violation of 18 U.S.C. § 2313. The district court imposed a concurrent prison sentence of three years on each count after a jury verdict finding Hood guilty on all three counts. The defendant appeals, raising three issues: (1) the admission of evidence obtained from a search conducted on the basis of an allegedly invalid search warrant; (2) the sufficiency of the evidence to support convictions on counts II and III; and (3) the correctness of an instruction which allowed the jury to infer from possession of property recently stolen that the person in possession knew the property was stolen.
William Mitchell Hood was president and general manager of Frigid Food Express, Inc., a trucking firm. The Federal Bureau of Investigation suspected Hood of purchasing stolen tractors and using them in Frigid Food's interstate motor carriage operations. On the basis of an affidavit narrating information obtained from three unnamed informants and signed by Robert E. Radde, a special agent of the FBI, and Lee H. Cole, a detective sergeant of the Indiana State Police a search warrant was secured from a United States Commissioner. The vehicles described in the indictment were seized in a raid on Frigid Food's terminal in Westville, Indiana conducted on March 7, 1968 pursuant to the search warrant.
The affidavit sworn by Radde and Cole was the only material presented upon which the Commissioner could make a finding of probable cause. The affidavit contained the following allegations: that a reliable informant had seen tractors which affiants knew to be stolen on the premises of Frigid Food's terminal in Westville, Indiana; that the informant had "on various occasions in the past furnished information leading to the recovery of similar type stolen property"; that another informant, believed by affiants to be reliable, stated that employees of Frigid Food were engaged in stealing tractors and that he personally observed one of the stolen tractors on Frigid Food's premises; and that another informant, believed to be reliable, observed the use of many tractors known to him to be stolen in Frigid Food's operations.
It is settled law that probable cause for the issuance of a search warrant may be based on hearsay furnished by a confidential informant, Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). In Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), the Supreme Court set forth explicit standards by which to test the reliability of informant hearsay used to establish probable cause. The magistrate to whom the application for a search warrant is presented "must be informed of some of the underlying circumstances from which the informant concluded" that contraband was present on the premises and "some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable'," 378 U.S. 108, 114, 84 S. Ct. 1509, 1514, 12 L. Ed. 2d 723 (1964). Consequently, we must apply the two-pronged test of Aguilar to the affidavit in this case.
We think that the circumstances underlying the first informant's statement form a sufficient factual basis to support his allegation that stolen tractors were present on Frigid Food's premises. The showing required in support of the informant's accusation is subject to the same probable cause standards used in appraising a police officer's own observations. Since the first informant told affiants that he had personally seen tractors which the affiants knew to be stolen, the first aspect of the Aguilar test is clearly satisfied even if the statements of the other informants are ignored. Hood argues that the informant must not merely see the tractors but know on the basis of personal knowledge that they are stolen in order for the Aguilar standard to be met. This argument was implicitly rejected in Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964), where there was no evidence that the informant knew, on the basis of personal knowledge, that the furs which he observed on defendant's premises were stolen.
With respect to the reliability of the informants, the officers swore that one of the informants had, "on various occasions in the past furnished information leading to the recovery of similar type of stolen property." This representation alone perhaps constitutes a sufficient underlying circumstance to meet the Aguilar requirement. Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). We need not rest our ruling, however, on this solitary statement. The informant's reliability was further strengthened by the hearsay information furnished by the other two informants since their statements tended to corroborate the hearsay supplied by the first informant. In Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964), the Supreme Court sustained a finding of probable cause based upon an affidavit containing interrelated hearsay information from a number of undisclosed informants. The affidavit contained representations that each informant had supplied the FBI with reliable information in the past. There, as here, the interlocking nature of the secondhand information from several sources fortified the reliability of each informant.
One difference between Rugendorf and the instant case must be noted. With reference to two of the informants in the case at bar the officers said only that they believed them to be reliable without giving reasons for their belief. Were we to appraise the reliability of these two informants independently, a challenge to their reliability could properly be raised. However, these informants' reliability must be considered in the context of the information supplied by them as well as by the informant whose reliability was vouched for by reference to past occurrences. When thus considered, the insufficient basis offered in the affidavit for the reliability of the latter two informants becomes less significant and does not bar the use of their information for corroborative purposes when determining the reliability of the first informant.
For the reasons stated, the requirements set forth in Aguilar are fully met and a sufficient basis existed for the Commissioner to issue the search warrant.
The Insufficiency of the Evidence
The defendant contends that the Government failed to prove by competent evidence the charges in counts II and III of the indictment and that its failure to do so prejudiced the jury in determining his guilt under count I. With respect to counts II and III the Government was required to prove that the vehicles named in the indictment were stolen and that they were moving as interstate commerce in the manner alleged in the indictment. The owners of the trucks in counts II and III did not testify at the trial.
We think the Government satisfied its burden of proof on count II. Count II alleged that on or about August 28, 1967 Hood received a stolen 1966 Mack tractor moving as interstate commerce from Chicago to Westville, Indiana. In support of this charge, a Government witness, Lehman Casey, testified that he stole a 1966 Mack tractor and delivered it to Hood, suggesting that it be registered in the name of Jack Bell, a fictitious person. Casey further testified that Hood paid him $2,000 for the vehicle although its market value was approximately $20,000. Another Government witness, Thomas Wheeler, testified that in 1967 he sold an old and dilapidated truck to the defendant. At the time the vehicle described in count II was seized pursuant to the search warrant, it was registered in the name of Jack Bell and possessed a vehicle identification number identical to the Wheeler truck. Over the objection of the defendant, the district court permitted a special agent of the National Auto Theft Bureau to testify that, according to a Chicago police report, a vehicle answering the description contained in count II was owned by a Clair Robinson of Newcastle, Pennsylvania and had been stolen on August 27, 1967. Even without the police report there was sufficient circumstantial evidence to support the conviction under count II. Accordingly, it was harmless error to permit the hearsay evidence to be introduced.
The Government failed to satisfy its burden on count III. Count III alleged that Hood received and concealed a stolen 1961 Mack tractor, serial number G753LST1418, which was moving in interstate commerce from Calumet City, Illinois to Westville, Indiana. The sole evidence presented by the Government to demonstrate that the tractor was stolen was the testimony of an insurance agent. The agent, whose company insured the vehicle named in the indictment, testified over the defendant's objection that the ...