Smith and Hays, Circuit Judges, and Levet, District Judge.*fn* Hays, Circuit Judge (dissenting in part).
This is an appeal from a judgment of conviction entered on February 9, 1970 in the United States District Court for the Western District of New York (Henderson, D. J.) convicting the appellant, Arthur Peter Dzialak, after trial by jury on Counts II, III, IV and V of a five-count indictment. Counts II, IV and V charged appellant with possessing chattels valued in excess of $100.00 knowing the same to be stolen, which goods were part of an interstate shipment, in violation of 18 U.S.C. § 659. Count III charged appellant with possessing chattels valued at less than $100.00, knowing the same to be stolen, in violation of 18 U.S.C. § 659. Dzialak was sentenced to a prison terms of one year on the misdemeanor charge and three years on each of the felony charges, the terms to run concurrently. In addition, the court levied a fine of $5,000 on each felony count and of $1,000 on the misdemeanor.
Dzialak urges that his conviction on all four counts be reversed on the following grounds:
1. Certain evidence seized in the search of the trash in front of the premises of appellant was obtained by means of an unlawful search and seizure;
2. Probable cause was lacking for the issuance of the search warrant dated December 4, 1967 authorizing a search of the home of appellant;
3. The evidence seized in the search of appellant's premises on December 4, 1967 was obtained by means of an unlawful search and seizure;
4. The superseding indictment, upon which appellant's conviction rests, was returned by inadequate and incompetent evidence before the Grand Jury;
5. The reference to certain slips of paper first admitted and later withdrawn from evidence at trial constituted prejudicial error;
6. The trial judge improperly charged the jury with respect to Count II of the indictment;
7. The evidence was insufficient to sustain the conviction of appellant of the offense charged in Count II of the indictment;
8. The sentence imposed by the trial judge was illegal, excessive and arbitrary.
We affirm the judgment as to Counts II, III and V and reverse as to Count IV.
Dzialak was employed by the Railway Express Agency as a driver. Harold J. Poling was a security investigator for the Railway Express Agency. Poling began an investigation of appellant's activities on November 5, 1967 after learning that certain merchandise placed in the custody of Railway Express for delivery was not reaching its destination. Poling also received information from a fellow Railway Express employee that an unidentified person had reported that the wife of appellant was selling watches and clothing at low prices.
During the course of a surveillance of appellant's home at 35 Diane Drive in the town of Cheektowaga, New York, on November 24, 1967, Poling examined a cardboard box which was part of the trash left between the sidewalk and street in front of appellant's home. The carton bore an attached white copy of an invoice dated November 7, 1967 covering a shipment of several dozen hosiery shipped from a mill in Pennsylvania to a Sears, Roebuck store in Lockport, New York. Inside the box was found a pink copy of the same invoice as well as several torn pieces of a cardboard box which, when pieced together, formed a carton bearing the name "Schwinn Bicycles," and an address label bearing the notation "Jimmy Mangum, 2594 Fontaine, Memphis, Tennessee, from John R. Dixon, 187 Brunswick, Buffalo, New York 14208." The carton also contained three pieces of paper bearing references to shirts and shirt sizes.
Poling conducted a second surveillance of the premises of the appellant on November 30, 1967, at which time he again seized items from the trash in front of appellant's home. Among the items seized from the appellant's trash at this time was a white cardboard carton addressed to appellant's wife. Poling also seized a Schwinn bicycle guarantee stamped "Heil Brothers, 640 Broadway, Buffalo, New York." Poling conducted further investigation ...