Swygert, Chief Judge, Knoch, Senior Circuit Judge, and Kiley, Circuit Judge.
KNOCH, Senior Circuit Judge.
Defendant-appellant, Richard Buonomo, appeals from conviction in a jury trial, on an indictment charging him (and five named co-conspirators) with conspiracy to violate Title 18, U.S.C. §§ 2312 and 2314 by interstate transportation of stolen motor vehicles and counterfeit motor vehicle title documents.
All six defendants were charged in the conspiracy count, Count I. The individual defendants were charged in Counts II thru VII, relating to six individual stolen automobiles. This defendant was charged in Count IV.
One of the co-defendants, Pasquale Accetura died before trial. Four others pleaded guilty.
Defendant-appellant was sentenced to serve five years on each of the two counts in which he was named, to run consecutively to each other and to the sentence which defendant was then serving on a prior conviction based on his plea of guilty.
The defendant raises five issues under the Fourth and Fifth Amendments to the Constitution.
(1) his conviction on the conspiracy count is barred by the provisions against double jeopardy;
(2) the evidence was insufficient to support a guilty verdict on Count IV;
(3) his trial on Count IV was prejudicially affected by the evidence introduced to prove the conspiracy count;
(4) evidence was erroneously admitted which was secured through an invalid search warrant issued on a constitutionally insufficient complaint; and
(5) evidence was erroneously admitted which had been seized in the execution of the aforesaid search warrant despite the fact that it was not particularly described therein.
On February 14, 1966, defendant pleaded guilty in Case Number 65 CR 801 in which he and five co-defendants, including the deceased Pasquale Accetura (also charged in this indictment) were accused of a similar conspiracy to violate Title 18 U.S.C. §§ 2312, 2313 and 2314, involving interstate transport of stolen motor vehicles and counterfeit motor vehicle title documents.
Defendant contends that there is some overlapping in dates in the listings of overt acts in the two indictments, pointing out that the 1965 indictment alleges a conspiracy covering the period from in or about April 1964 to the date of the indictment, November 12, 1965, with overt acts occurring as late as July 20, 1965, while the second indictment covers a conspiracy beginning in or about July 1965, with overt acts occurring as early as the "summer" of 1965. The last specific date in the 1965 indictment, however, precedes the first specific date in the 1968 indictment.
Defendant argues that a comparison of the two indictments supports his view. Yet defendant did not raise the issue of double jeopardy before the government had rested, if, in fact, it was raised that early in the trial. The record before us shows only that a motion for judgment of acquittal, made at the close of the government's case, was denied, without disclosing the basis for the motion. It was clearly raised only in defendant's Motion for New Trial and/or in the Alternative for Arrest of Judgment, filed eight days after the trial. The government contends that absent a timely claim, the defense of double jeopardy is deemed to be waived. Barker v. Ohio, 6 Cir., 1964, 328 F.2d 582, 584 and cases there cited.
Constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded at the time of trial will be regarded as waived. Ferina v. United States of America, 8 Cir., 1965, 340 F.2d 837, 838-839, and cases there cited, cert. den. 381 U.S. 902, 85 S. Ct. 1446, 14 L. Ed. 2d 284.
As the court said in Rollerson v. United States of America, 1968, 132 U.S.App.D.C. 10, 405 F.2d 1078, 1081, (judgment vacated and remanded on other grounds 394 U.S. 575, 89 S. Ct. 1300, 22 L. Ed. 2d 557) the Trial Judge should be alerted to the possible superfluity of the impending trial so that if the claim proved to have merit the time and effort of a trial might have been saved. As defendant is relying solely on the indictment to prove the identity of the earlier charge, the facts necessary to the formulation of his claim were known to him prior to trial.
Defense of second jeopardy may not be raised for the first time by motion for a new trial. United States of America v. Reeves, D., D.C., 1968, 293 F. Supp. 213, 214, relying on Brady v. United States of America, ...