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United States v. Callaway

decided: July 15, 1971.

UNITED STATES OF AMERICA
v.
DENNIS A. CALLAWAY, CAL R. DEVYVER CAL R. DEVYVER, APPELLANT



McLaughlin and Van Dusen, Circuit Judges, and Hannum, District Judge.

Author: Hannum

Opinion OF THE COURT

HANNUM, District Judge.

On June 23, 1966, appellant Cal R. DeVyver and his co-defendant Dennis Callaway were convicted by a jury on three counts of transporting stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 2312, and one count of wrongfully impersonating a diplomat in violation of 18 U.S.C. § 915. DeVyver was sentenced to a total of seven years imprisonment pursuant to 18 U.S.C. § 4208(a) (2).

On September 13, 1968, DeVyver filed a pro se motion to vacate his sentence, and on November 3, 1968, the district court denied the relief requested. On appeal this Court affirmed the decision of the lower court, but found that the moving papers fairly raised a question of whether appellant had voluntarily waived his right to appeal. Because of the lack of evidence in the record on this issue, the matter was remanded to the district court for an evidentiary hearing. DeVyver v. United States, 413 F.2d 254 (3d Cir. 1969).

On January 28, 1970, an evidentiary hearing was held where it developed that appellant, an indigent, had not been advised of his right to appeal following the imposition of sentence pursuant to the mandate of Fed.R.Crim.P. 32(a) (2). Accordingly the evidentiary hearing was terminated and DeVyver filed a motion to vacate sentence the following day.

On February 3, 1970, a hearing was held on this motion and the motion was granted. DeVyver was thereafter resentenced to a total of five years imprisonment pursuant to 18 U.S.C. § 4208(a) (2),*fn1 and this appeal followed.

The four grounds upon which appellant attacks the validity of his conviction are: (1) that there was insufficient evidence to convict appellant of unlawfully impersonating a duly accredited Canadian diplomat in violation of 18 U.S.C. § 915; (2) that his conviction was based upon evidence seized during an unlawful search of two automobiles conducted by the Canadian police in violation of his rights under the Fourth Amendment; (3) that the trial court improperly commented upon appellant's decision not to testify in his own behalf in violation of his rights under the Fifth Amendment; and (4) that he was denied due process of law by a cumulative series of errors committed by the trial court.

The relevant facts concerning DeVyver's first contention are, briefly, that on June 20, 1968, he and Callaway were approached by a Paramus, New Jersey patrolman to whom it appeared that they were attempting to pick the lock on certain closed premises. In response to the patrolman's initial inquiry concerning their suspicious activities, DeVyver indicated that he was a diplomat. When the patrolman's superior subsequently arrived, DeVyver identified himself as a diplomat and produced appropriate supporting credentials. As a result of this successful impersonation, DeVyver and Callaway were released and permitted to leave without further incident or inconvenience.

DeVyver contends that Section 915 proscribes not merely the act of impersonating a foreign diplomat, but rather the pretension of being a foreign diplomat "duly accredited as such to the United States." Appellant contends that there was a failure of proof in the government's case as to this specific element of the crime.

While DeVyver did not actually indicate that he was attached to a particular American Mission during the course of his successful attempts to convince the Paramus police that he was entitled to diplomatic immunity, it is clear that he intended to use diplomatic privilege as a shield against the law. In fact, appellant's successful impersonation of a duly accredited Canadian diplomat allowed him to avoid lawful authority and obtain release from possible custody and arrest.

In Cortez v. United States, 328 F.2d 51 (5th Cir.), cert. denied, 379 U.S. 848, 85 S. Ct. 89, 13 L. Ed. 2d 52 (1964), the court indicated that the false pretense of foreign diplomatic authority to obtain something of value was the primary evil that the statute sought to correct. Absent evidence to the contrary, any misrepresentation designed to obtain something of value implies the representation that the status, which would produce the thing of value sought, exists in the person making the misrepresentation. The evidence in the present case clearly established that DeVyver's conduct was in direct violation of this purpose. Accordingly his conviction under Section 915 is valid and must stand.

DeVyver's second contention involves the propriety of the warrantless searches of two automobiles conducted in Toronto, Canada by the Toronto police. It appears that on July 19, 1965, DeVyver and Callaway, while riding in a 1963 Jaguar, were stopped by members of the Toronto police. They were taken to police headquarters for questioning concerning their sale in Toronto of a certain stolen Volkswagen and the possible status of the Jaguar in which they were riding. Upon arriving at police headquarters the Jaguar was parked in an adjacent lot and was locked by defendant Callaway. Shortly thereafter when Callaway was required to empty the contents of his pockets the police obtained the key and searched the car.

Later that day, upon information they had received during their investigation, the police visited the temporary Toronto residence of the defendants and searched a Chevy II station wagon which was found ...


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