Appeals from the United States District Court for the Northern District of Illinois, Eastern Division - No. 74 CR 445 Frank J. McGarr, Judge.
Hastings, Senior Circuit Judge, Swygert and Stevens, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Defendants-appellants Robert Wilkinson, Harold W. Bean and Robert A. Byron were charged in a one-count indictment with possession of stolen goods in violation of Title 18, U.S.C. § 659.*fn1 After a trial by jury in the Northern District of Illinois,*fn2 each of the three named defendants was convicted on the single count as charged.*fn3 Judge McGarr imposed sentences of five years incarceration for Bean, three years for Byron and two years for Wilkinson. All sentences were made consecutive to unrelated sentences which defendants were then serving. Defendants have appealed their respective judgments of conviction and sentence.
The issues presented for review on this appeal are:
I. Whether the affidavit in support of the search warrant provided the magistrate with sufficient information to justify his finding of probable cause.
II. Whether the defendants were entitled to examine the grand jury minutes concerning their indictment to determine whether the indictment was based solely on hearsay, or, in the alternative, to have the trial court examine said minutes in camera.
III. Whether the trial court erred in admitting a statement of a defendant, made during the course of the offense, to prove motive for participation in the crime.
IV. Whether a joint venture instruction may be given where no conspiracy is charged.
V. Whether the sentences imposed within the statutory limits constituted cruel and unusual punishment where lesser sentences were given to other defendants in unrelated cases.
A concise statement of the relevant facts, though not materially disputed, considered in the light most favorable to the government, seems necessary upon which to predicate a resolution of the issues at hand.
As disclosed in an affidavit provided to the magistrate as the basis for the issuance of a search warrant, more specifically hereinafter referred to, an REA Express trailer, number REXZ206205, was stolen on March 10, 1973, from REA's Oshkosh, Wisconsin, terminal. At that time the trailer was loaded with cartons bearing REA labels with the word "Wisconsin" on some of the labels. The cartons contained, among other things, the merchandise listed in the grand jury indictment hereinabove set out. The trailer, with only a few items remaining in it, was recovered in Roseland, Illinois, on March 11, 1973, one day after the theft. The stolen cartons were observed on the premises at 2847 South Kedzie, Chicago, Illinois, on March 12, 1973.
The evidence set out by the government in its brief, with transcript citations, clearly established beyond a reasonable doubt the following events:
Kenneth Formanek was self-employed with Kedzie Auto Body located at 2847 South Kedzie Avenue in Chicago. About noon on the first Monday in March 1973, defendants Bean and Wilkinson and one Falco entered the garage and all four men went to a tavern next door known as "Cavanaughs." Bean asked Formanek if he would be interested in making any money, and after receiving an affirmative reply told Formanek he would get back to him at a later date.
Bean next met with Formanek on the following Wednesday in the yard adjacent to the garage and asked Formanek if he could use his garage for a drop and how much it would cost. Formanek told Bean he would charge $1,000 and a percentage of the load. On the following Friday Bean and Wilkinson returned to Formanek's garage in the early evening. Bean told Formanek they might have a load that night and for him to be in the garage. Bean told Formanek he would let him know.
Formanek then told Zenon Szymanski, one of his employees, that a "hot" trailer would be dropped at the garage and that he was to be paid $1,000 and a percentage of the load. Formanek asked Szymanski if he would be interested in taking part for a split of the money. Later that night Bean called Formanek and said the deal was off for that night and he would get back to him the next day. On the following day, Saturday (March 10, 1973), about 7:00 p.m., Bean again telephoned Formanek and told him the load was on its way and would arrive in about three hours.
At about 5:00-6:00 a.m. Sunday (March 11, 1973), Wilkinson arrived with a truck. Formanek told him to back the truck up to the garage and pulled another truck in front of it to block the view from the street of the truck driven by Wilkinson. Formanek, Wilkinson and Szymanski then began to unload the trailer. They ...