United States v. Cotham

• Decision Date: 05 July 1973
• Docket Number: Crim. A. No. SA73CR86.
• Citation: 363 F. Supp. 851
• Parties: UNITED STATES of America v. Brett Camil COTHAM et al.
• Court: U.S. District Court — Western District of Texas

363 F. Supp. 851

UNITED STATES of America v. Brett Camil COTHAM et al.

Crim. A. No. SA73CR86.

United States District Court, W. D. Texas, San Antonio Division.

July 5, 1973.

William S. Sessions, U. S. Atty., Joel Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff.

Cameron Cunningham, Austin, Tex., for Brett Camil Cotham and Mary Jane Ricks.

Alan Brown, San Antonio, Tex., for Robert Hilton Orozco.

ORDER DENYING MOTION TO SUPPRESS

SPEARS, Chief Judge.

The above defendants in this cause stand charged by indictment with conspiring with six others, only one of whom is also named as a defendant, to possess marihuana with intent to distribute the same, in violation of 21 U.S. C. §§ 841(a)(1) and 846. The indictment alleges that the conspiracy began "on or before January, 1972" and continued "until on or about February 3, 1972". Seven overt acts are alleged in furtherance of the conspiracy, two of which pertain to co-conspirators who are either absent from this cause or who are not named as defendants. The last overt act is alleged to have occurred on February 3, 1972, in the Western District of Texas.

Defendants seek to suppress evidence of a quantity of marihuana which was seized pursuant to a search, with warrant, of the residence of Stuart Weinstein, a co-conspirator, in Charlottesville, Virginia, on February 22, 1973. Defendants contend that the search warrant was improperly issued. The Government, in response, contends that defendants have no standing to object to the search.

A hearing was held on June 1, 1973, at which time testimony was taken in regard to the issues of standing and the validity of the search warrant. The summary herein of the relevant testimony should be considered as the Court's findings of fact.

Defendants claim no possessory interest in the premises which were searched in Virginia. None of the defendants now before the Court were present at the time the search was conducted. Nevertheless, they contend that they have "automatic" standing to object to the search by reason of the holding in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Under that holding, when possession of the fruits of a search at the time of the search is an essential element of the offense, the defendant has standing to object to the search, despite his absence from the premises, or his failure to assert a possessory interest in the premises searched or the property seized. The reasoning behind that holding was that to deny a defendant the opportunity to challenge a search because of his failure to claim a possessory interest in the contraband seized, a claim which, if made, would be self-incriminatory, was to offer the defendant a Hobson's choice.

Defendants assert that the offense with which they are charged is a possessory offense, and that therefore, they have standing to object to the search despite the fact that it occurred at a place in which defendants had no interest.¹

The Supreme Court, in the recent case of Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), questioned the continued vitality of the automatic standing rule of Jones, but expressly reserved decision on that point for a case in which the Jones rule is applicable. The Court pointed out that the self-incrimination dilemma which the Jones decision sought to eliminate is no longer present by virtue of the holding in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which held that testimony given by a defendant to establish standing at a pre-trial hearing on a motion to suppress may not be used against that defendant at trial.

In the Brown case, however, the Court found that the circumstances which were present in Jones were absent. In Brown, two defendants were charged with transporting stolen goods and with conspiracy to transport stolen goods in interstate commerce. They sought to challenge the lawfulness of a seizure from the premises of a co-conspirator of merchandise which they had stolen, but which had been stored at the co-conspirator's store. Neither defendant asserted a proprietary interest in either the goods seized or the co-conspirator's premises. The Court held that the facts of the case did not bring it within the purview of the Jones rule, and that defendants had no standing to object to search and seizure. The Court stated:

"In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." (Emphasis supplied). 411 U.S. at 229, 93 S.Ct. at 1569.

Defendants contend that Brown is not in point because, in the present case, "the possession here `to possess with intent to distribute' is a continuing possession." Defendants maintain that the Government is placing itself in a contradictory position when it asserts, on the one hand, that defendants had no possessory interest in the contraband, but on the other, seeks to prove possession as part of its case.

Had defendants been charged with possession of marihuana, they would have a more tenable argument, assuming the continued correctness of Jones. In the present case, however, they are charged not with possession but with conspiracy to possess. That being the case, the Court feels that Brown v. United States is controlling and that defendants lack standing. As set out above, when possession is not an essential element of the offense charged, there is no automatic standing.

It is well settled that conspiracy to commit an offense, and the substantive offense itself, are separate and distinct crimes. E. g., Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L. Ed.2d 312 (1961), United States v. Jacobs, 451 F.2d 530 (5th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972). It is immaterial to the conspiracy charge whether the substantive offense is committed or not. E. g., United States v. Jacobs, 451 F.2d 530 (5th Cir. 1971). Of course, at least one overt act in furtherance of the criminal agreement must be shown in order to prove the offense. E. g., United States v. Jacobs, supra, Roberts v. United States, 416 F.2d 1216, 1220 (5th Cir. 1969).

In the instant case, all of the overt acts enumerated by the Government are alleged to have taken place no later than February 3, 1972 (the date alleged as the termination date of the conspiracy), well before the date of the search. Thus, it is quite apparent that it is not essential to the Government's case to prove that defendants possessed the marihuana in question at the time of the seizure, and, therefore, the holding in Brown v. United States is squarely in point and the rule of Jones v. United States is inapplicable.

Even if the facts in this case were such as to bring it within the Jones rule, this Court would be very reluctant to acknowledge automatic standing, in light of the Supreme Court's statements in Brown concerning the effect of Simmons v. United States, supra, upon the necessity for the rule in Jones. There no longer being a reason for the rule, this Court can perceive no reason for applying it.

The Court, therefore, concludes: (a) that as a matter of law, defendants have no standing to object to the seizure of marihuana from the house of Stuart Weinstein, since they assert no possessory interest in the premises searched, and possession of the marihuana seized at the time of seizure by defendants is not an essential element of the offense with which they are charged; (b) that even if possession of the marihuana at the time of seizure were an essential element of the Government's case, defendants would not have standing to object since they have asserted no possessory interest in either the premises or the contraband. The Court specifically finds that the "automatic" standing holding of Jones v. United States, supra, is no longer valid, in light of the procedural change brought about by Simmons v. United States. Under Simmons, defendants could have asserted a possessory interest at the hearing without fear of self-incrimination, thus obviating the necessity for the rule in Jones.

Notwithstanding defendants' lack of standing, the Court has considered their objections to the warrant, and finds them to be without merit.

Defendants have strongly maintained that the Virginia Justice of the Peace who issued the search warrant is not a judge of a state court of record, and, therefore, was not empowered to issue the warrant under the provisions of Rule 41(a), Fed.R.Crim.P., as then in effect. The Government, retreating from its former position, now agrees that a Justice of the Peace in Virginia is not a judge of a court of record, but maintains that this defect is immaterial, since the search was neither initiated, conducted, nor participated in by federal officers.

The evidence offered at the hearing indicates that the search warrant was obtained by Carl R. Deavers, Jr., an officer of the Virginia State Police, and that the warrant was executed by state officers only. Federal officers became involved only after the search was completed. There was no evidence that federal officers acted in a supervisory capacity, or that they instigated the search.

Defendants rely upon the holding in Navarro v. United States, 400 F.2d 315 (5th Cir. 1968), as authority for the proposition that evidence seized pursuant to a warrant issued by a state magistrate who is not a judge of a court of record may not be admitted in a federal prosecution. The factual situation in Navarro, however, is clearly distinguishable from that in the instant case. In Navarro, federal agents joined in the "enterprise" shortly after the...