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United States v. Mahone

decided: July 1, 1976.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
OTHA LEE MAHONE, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division No. H Cr 75-64 ALLEN SHARP, Judge.

Pell, Bauer, Circuit Judges, and J. Sam Perry, Senior District Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

Appellant challenges his conviction under 26 U.S.C. §§ 5861(d) and (i) for possessing a sawed-off shotgun not registered to him and not identified by a serial number. The principal questions raised on appeal concern the legality under the Fourth Amendment of the seizure of the shotgun, the propriety of the trial judge's refusal to give an "absent witness" instruction and his refusal to let counsel for the defendant refer to the "absent witness" in the final argument, and the procedure to be followed by the trial judge in admitting evidence of the defendant's prior conviction for impeachment purposes under Federal Rule of Evidence 609. We affirm the conviction.

I.

In the early morning of March 26, 1975, four East Chicago, Indiana, police officers in an unmarked car responded to a radio call reporting an armed robbery at the Soul Snack Shop at the corner of 150th and Alexander Streets in East Chicago. At the scene, a witness told the officers that he had observed "three carloads of subjects" armed with weapons and that one of the cars was a black over blue Plymouth. The officers then left the shop and patrolled the area.

About fifteen minutes later they saw a black over blue Plymouth pull to the side of the road behind a parked car about one block from the snack shop. The policemen pulled behind the Plymouth, preventing it from moving. The officers then left their car with their weapons drawn, two officers going to either side of the Plymouth. As they approached the right side of the Plymouth, one of the policemen, Officer Belzeski, saw the passenger in the front seat holding a weapon. While ordering the front seat passenger to drop the weapon, Officer Belzeski saw the passenger in the right rear seat, the defendant, place a weapon on the floor of the car. After the suspects left the Plymouth, Officer Belzeski retrieved a sawed-off shotgun from the rear seat floor of the car. The defendant was convicted of possessing the shotgun.

II.

The first issue raised by the appellant is whether the shotgun was lawfully seized. We hold that the seizure was lawful since it occurred during a proper Terry*fn1 investigative stop.

" A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest [ Terry v. Ohio, 392 U.S. 1, 22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)] . . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-6, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972).

The officers here acted upon facts sufficient to justify stopping the suspect's automobile. While investigating an armed robbery, an informant who had personally observed the suspects gave them a description of the make and color of the suspect's car. Within minutes, the officers saw the described car a short distance from the place where the informant had seen it.

We rely on United States v. Adams, 484 F.2d 357, 360 (7th Cir. 1973), in which this Court upheld a Terry stop based on similar facts. The Court in Adams particularly relied upon three elements present in the instant case: (1) a moving automobile, an element which has justified warrantless stops in various police investigation situations, Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971); Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970); Carroll v. United States, 267 U.S. 132, 153, 69 L. Ed. 543, 45 S. Ct. 280 (1925); (2) an informant's tip based on personal observation, rather than on suspicion or belief, see Spinelli v. United States, 393 U.S. 410, 416, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 113, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); and (3) the automobile being stopped within close physical and temporal proximity to the crime being investigated. See United States v. Zapata, 535 F.2d 358 (7th Cir. 1976); United States v. Lovenguth, 514 F.2d 96 (9th Cir. 1975).

The sawed-off shotgun was properly seized as contraband during the stop.

"It is clear that contraband (defined as an item the possession of which in itself is a crime) may be seized in the course of a legal search. Cf. Harris v. United States, 331 U.S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947). The sawed-off shotgun which formed the basis of the offense in the instant case is contraband. See 26 U.S.C. §§ 5841, 5861(d), and 5871; 49 U.S.C. § 781(b)(2)." United States v. Adams, supra, 484 F.2d at 361, n.2.*fn2

III.

The appellant's second alleged error involves the absence of testimony at trial by one of the four police officers present during the seizure of the shotgun. During its opening argument the government mentioned that it would show at trial that four officers were involved in the arrest of the defendant. Only three of the officers were called to testify.

The appellant considered the government's failure to produce the fourth officer significant enough to warrant an instruction indicating to the jury that it could draw an inference that the officer's testimony would have been unfavorable to the government. The trial judge refused the defendant's request for such an instruction, and after considerable argument and deliberation refused to permit appellant's counsel to comment on the absence of the witness in his final argument. The appellant claims that it was error for the trial judge to refuse to give the instruction and to forbid comment on the point.

"The rule . . . is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. ...


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