Lumbard and Feinberg, Circuit Judges and Clarie, District Judge.*fn*
This prosecution was initiated by a three-count indictment. Count I charged John Thomas Price, his brother, William Hollis Price, and Frank Mirabelli with conspiracy to steal 29,772 pounds of magnetic copper wire from Buffalo while these goods were moving in interstate commerce. Count II charged John Thomas Price and Frank Mirabelli with the substantive crime of theft, 18 U.S.C. § 659. Count III charged William Hollis Price with receipt and possession of the stolen wire. After the jury was sworn but before trial commenced, Mirabelli pleaded guilty to a lesser misdemeanor charge and testified for the government at trial. Also appearing for the government were Harold and James Sutton, who were named as co-conspirators but not as defendants. The defense rested at the conclusion of the government's case. John Thomas Price was convicted on both Counts I and II. William Hollis Price was convicted on Count III, the possession count, but the jury acquitted him on the conspiracy charge. John Thomas Price was sentenced to four years imprisonment, three years thereof suspended, and fined $15,000. William Hollis Price received a three year sentence, with two years and six months of this time suspended.
The government's proof established the following: On September 19, 1966, Frank Mirabelli, a truck driver, arrived in Buffalo with the copper wire which he had picked up in Port Newark, New Jersey, for delivery at Western Electric Company's Buffalo plant. Because he had failed to contact Western Electric in advance, Mirabelli was unable to deliver his load, and was told to return the next day. That afternoon Mirabelli, John Thomas Price and the two Suttons agreed to the theft. Pursuant to their plan, Mirabelli unhooked his tractor from the trailer load of copper and then took the tractor to a garage, ostensibly for servicing. The Suttons hooked their own tractor to Mirabelli's trailer and hauled it to New Milford, Pennsylvania while Frank Mirabelli spent the night at John Thomas Price's home for an alibi. One of the Suttons drove the truck while the other followed in an automobile. Upon arriving in New Milford, the Suttons were to store the copper-laden trailer in a kiln dry building, or warehouse, owned by George Price, the defendants' grandfather.
When they reached the kiln dry building, however, the Suttons discovered that John Thomas Price had forgotten to give them the keys, and they called him for instructions. Price advised them to get the keys from George Price at his home just across the state line in New York, so the Suttons drove their car to the grandfather's house. Arriving there, they met William Hollis Price who told them that George was not at home. When the Suttons advised William that they were sent there by his brother with a "hot" load, he agreed to accompany them to New Milford and bust the lock on the kiln dry building so that the Suttons could store the goods.
During the ensuing weeks, Kenneth Baker, who leased part of George Price's premises in New Milford, and a James Davison observed copper wire being burned on the property.
On January 10, 1967, the Pennsylvania State Police and a FBI agent, acting on a tip that the grandfather had a load of copper wire stolen from North Carolina, secured a warrant from a Justice of the Peace to search the kiln dry building. No affidavits were presented to this magistrate, although the police did inform him of the nature of their information. A search that day failed to disclose any copper, but vehicles resting inside were found to have been stolen. Armed with this information, the officers secured a new search warrant, again without affidavit, and returned to the building on January 11 to remove the vehicles. While this was being done, one of the officers discovered two spools of copper wire which were identified by number as coming from the shipment Mirabelli had carried.
Since the principal claims raised by each appellant differ, it will be convenient to treat them separately. We affirm the conviction of John Thomas Price. Since we disagree with Judge Curtin's holding that William Hollis Price did not have standing to challenge the search made on January 10 and 11, we vacate his conviction and remand for further proceedings on his motion to suppress.
William Hollis Price argues that the Western District of New York was improper venue for his trial on Count III relating to receipt and possession of the stolen property because his possession occurred entirely within Pennsylvania. Because we thought this presented a difficult question of law which was not adequately treated by both parties in their main briefs, we directed the parties, by order dated February 25, 1971, to further explore the issue in supplementary briefs. The government contends that 18 U.S.C. § 659, which contains a special multi-venue provision for interstate theft, and 18 U.S.C. § 3237(a), a general multi-venue statute, clearly authorized William's trial in the Western District.*fn1 We find these sections more ambiguous in their applicability to the possession count than the government would have us believe. See United States v. Bozza, 365 F.2d 206, 220-222 (2 Cir. 1966); United States v. Ross, 205 F.2d 619 (10 Cir. 1953). See also United States v. Johnson, 323 U.S. 273, 65 S. Ct. 249, 89 L. Ed. 236 (1944); Abrams, Conspiracy and Multi-Venue in Federal Criminal Prosecutions: The Crime Committed Formula, 9 U.C.L.A. L.Rev. 751, 775-802 (1962).
We need not resolve this issue, however, for we find that any valid objection to venue William Hollis Price may have was waived below. Although our precedents establish that the constitutional underpinning and importance of proper venue dictate that waiver of objections to venue should not be readily inferred, we have identified two situations where a finding of waiver is proper: (a) when the indictment or statements by the prosecutor clearly reveal this defect but the defendant fails to object; and (b) when, after the government has concluded its case, the defendant specifies grounds for acquittal but is silent as to venue. United States v. Rivera, 388 F.2d 545 (2 Cir.) cert. denied, 392 U.S. 937, 88 S. Ct. 2308, 20 L. Ed. 2d 1396 (1968); United States v. Gross, 276 F.2d 816 (2 Cir.) cert. denied, 363 U.S. 831, 80 S. Ct. 1602, 4 L. Ed. 2d 1525 (1960); United States v. Brothman, 191 F.2d 70 (2 Cir. 1951).
Under either of these tests, the venue objection here asserted was waived below. At the very outset, counsel was on notice and was in fact aware that the government was proceeding on the assumption that the possession occurred in New Milford, Pennsylvania. Although Count III is silent concerning the place of possession, Count I, the conspiracy count, lists only three overt acts in which William Price's name appears, and all three specify New Milford.*fn2 By motion dated September 2, 1969, William Hollis Price requested a bill of particulars specifying, inter alia, the date when and place where he conspired illegally. The government's response was that "the indictment herein sufficiently sets forth the information requested." Aside from this explicit notice, defendant's counsel acknowledged in a preliminary hearing before Judge Curtin that he was aware of a "jurisdictional aspect" to the case because there was no "allegation of anything that relates to William Hollis Price in the Western District of New York." At that point, counsel was arguing that William may have been given immunity by a grand jury in Pennsylvania. At the conclusion of this hearing, counsel stated that he would "reserve on the jurisdictional argument that [he] might want to raise" pending further information regarding the investigation conducted by the Pennsylvania grand jury. No venue objection was raised thereafter, even though a motion for a severance was made on January 7, 1970 specifying numerous other grounds.
When the government rested its case, William moved for a directed judgment of acquittal. He argued that there was no showing of his participation in an agreement, and thus the conspiracy count must fall as a matter of law. Similarly, he contended that the proof was insufficient on the possession count, particularly because the government had failed to show that he possessed the wire on the date charged, September 20, 1966. No mention was made of venue. Following the verdict, a motion to set it aside as "contrary to law, contrary to the evidence, and contrary to the weight of the evidence" was tendered. Finally the motion was renewed at sentencing on the same grounds and also because (a) a showing of possession alone was insufficient to convict; (b) William was being convicted of guilt by association, and (c) the testimony of co-conspirators, Harold and James Sutton, as supplemented by that of Baker and Davison, was insufficient as a matter of law. Despite this specificity, no objection to venue was raised.
On the record as a whole, then, defendant's waiver of any defect in venue is manifest. Despite clear notice and actual knowledge of the presumed defect before trial commenced, William ...