Clay v. United States

• Decision Date: 10 May 1968
• Docket Number: No. 19050-19052.,19050-19052.
• Citation: 394 F.2d 281
• Parties: James Leon CLAY and Leo Junior Clay, Appellants, v. UNITED STATES of America, Appellee. James Leon CLAY, Appellant, v. UNITED STATES of America, Appellee. Leo Junior CLAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 281 (1968)

James Leon CLAY and Leo Junior Clay, Appellants, v. UNITED STATES of America, Appellee.

James Leon CLAY, Appellant, v. UNITED STATES of America, Appellee.

Leo Junior CLAY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19050-19052.

United States Court of Appeals Eighth Circuit.

May 10, 1968.

Jerry T. Light, Little Rock, Ark., for appellants and filed brief.

Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark., for appellee; Hon. W. H. McClellan, U. S. Atty., was on the brief with Mr. Riddick.

Before MATTHES, LAY and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

Appellants, who are brothers, have appealed from judgments of conviction entered upon jury verdicts finding them guilty, as charged, of a Dyer Act offense and transportation of stolen firearms in interstate commerce. The cases were tried jointly under separate indictments.

The indictment in appeal No. 19,050 charged James Leon Clay and Leo Junior Clay with transporting in interstate commerce, in violation of 18 U.S.C. § 2312, a stolen 1964 Oldsmobile from North Little Rock, Arkansas to Ellicott, Maryland, knowing the same to have been stolen. In appeal No. 19,051 James Leon Clay was charged individually with transporting in interstate commerce a stolen firearm — a .32 caliber pistol — from North Little Rock, Arkansas to Ellicott, Maryland in violation of 15 U.S.C. § 902. The indictment in No. 19,052 was identical except that it charged Leo Junior Clay with transportation of another stolen pistol between the same two points. All three offenses were alleged to have been committed on or about June 19, 1967.

Nos. 19,051 and 19,052

Appellants do not challenge the sufficiency of the evidence to sustain the conviction on the gun transportation charges. We refrain therefore from a detailed statement of the evidence.

A business establishment in Little Rock, Arkansas was burglarized on June 7, 1967. Approximately twelve pistols and other items of merchandise were stolen. Two of the stolen pistols were found in the possession of the appellants after their apprehension in the state of Maryland. The weapons were identified by their owner and introduced into evidence.

Appellants' main contention of error is premised on the lack of probable cause for their arrest and the illegality of the contemporaneous search and seizure of the stolen pistols from their persons. They argue that since there was no probable cause for their arrest, their convictions must necessarily rest on the use of evidence obtained by means of an illegal search and seizure, not incidental to a lawful arrest.¹

Appellants' counsel acknowledges that the question of probable cause was not properly presented to the district court either by motion to suppress under Rule 41(e) or by objection at the time that the guns were offered into evidence. Counsel nevertheless argues for consideration of this issue on the ground that the matter had been brought to the attention of the court during the trial. He suggests that the trial judge should have probed sua sponte into the circumstances of the arrest. He now submits that this Court should consider the question under the "plain error" rule. See Rule 52(b), Federal Rules of Criminal Procedure.

After the appellants had been returned to Little Rock, Arkansas following their arrest, they were unsuccessful in retaining a lawyer to represent them. The district court, Honorable Gordon E. Young, appointed Mr. William R. Overton, a member of a prominent law firm in Little Rock, to represent them. The attorney filed, among others, a motion to suppress certain incriminating statements made by the appellants to officers in Maryland. Judge Young conducted a plenary hearing on the motion and excluded the incriminating statements on the ground that the government had not shown that they were voluntarily made. During the hearing on the motion to suppress the inculpatory statements, counsel for the defense stated, in substance, that the question of illegal arrest and seizure was not in the case. Both appellants testified on the motion but not in the trial.

During a recess in the trial the following colloquy occurred between Judge Young and Mr. Overton:

"MR. OVERTON: Your Honor, during the course of the recess, my clients asked me to move for a mistrial on the grounds that they were highly dissatisfied with the way their lawyer had been conducting the trial; that their lawyer was a civil lawyer, not a criminal lawyer; that he had not made a point of several facts which had come out in the evidence — number one, their arrest was the result of illegal search and seizure. The arresting officer — Officer Ferguson, I believe, who came to the apartment on the first occasion — went into the apartment and that led to Leo Clay\'s arrest and he thinks that is an illegal arrest.

"Secondly, there were several points during the course of the testimony in connection with the flat tires. One witness said the car had one flat tire and another witness said three; and they did not like the way I handled that discrepancy in the testimony. They did not like the way that I did not bring out the fact that there were no finger prints on the instrument panel to indicate the automobile had been driven. I think that about covers the ground.

"THE COURT: Well, these things of course, it\'s always awkward when an appointed lawyer is criticized by his compulsory clients. It\'s not unusual I assure you, Mr. Overton; and still more awkward, of course, for the attorney to have to report his clients\' complaints about him to the Court, although you did the right thing in doing so.

I find no merit to any of the contentions raised by the defendants and related to the Court by counsel, and I certainly think that counsel for the defendants has done an excellent job in representing the defendants up to this point. The fact he is not a miracle worker may be the cause of dissatisfaction.

At any rate, I find no merit in any of these. There will be no mistrial.

"MR. RIDDICK (Assistant United States Attorney): For the record, I would like to say he has kept about two-thirds of my case out, and not many people are able to do that."

After the trial and during the sentencing proceeding Judge Young further observed:

"I would like to make this comment, that I have observed a number of trials of criminal cases and I think it is only fair to say that Mr. Overton, who acted as counsel for these defendants, performed, in my opinion, a very able job and the Court thanks him for representing them in that fashion."²

Do the proceedings as outlined above present a "plain error" situation? In Robinson v. United States, 327 F.2d 618 (8th Cir. 1964), in an analogous situation, we exhaustively dealt with a belated attempt to attack the legality of an arrest and incidental search and seizure. In Robinson, as here, there was no pre-trial motion to suppress the evidence on the ground that its seizure was not incidental to a lawful arrest. Judge Blackmun's analysis is apropos here:

"The prosecution therefore was not challenged about the arrest, showed only such facts as led to the search, was under no necessity of offering evidence in justification and explanation of the entry, and in effect was lulled into an assumed security which the defense would now make false. We, of course, do not know from this record what the government would or could have proved by way of explanation and justification. We do feel that, under the circumstances of this case, the defense is not now in a position to complain by afterthought. If an arrest and the search and the discovery of evidence are to be challenged on appeal, that challenge must be made in the first instance in the trial court. Fairness to that court and to counsel and to a reviewing court demands this. So do `fair procedural requirements.\' This presents no `plain error\' or Rule 52(b) situation for there may be no error at all." 327 F.2d at 623.

In Sykes v. United States, 373 F.2d 607 (5th Cir. 1966), the Fifth Circuit adopted the Robinson rationale and rejected the defendants' attempt to scrutinize for the first time on appeal the circumstances of an arrest that culminated in the seizure of incriminating evidence subsequently admitted at trial. In refusing to invoke the "plain error" rule the Court stated:

"* * * This Court has held that there is no `plain error\' where, irrespective of the substantiality of the claimed error, the record does not present the question in enough detail."

* * * * * *

"The present case classically illustrates the soundness of this rule. Whether or not there was error was not visible because all of the circumstances of the arrest were not before the court. That which is not visible cannot be `plain.\' We are not equipped for divination. Only the proper objection to the offered evidence would have allowed a clear picture in which we might have found error." 373 F.2d at 612-613.

See also, Johnson v. United States, 362 F.2d 43, 46 (8th Cir. 1966); Gray v. United States, 114 U.S.App.D.C. 77, 311 F.2d 126, 127 (1962).

If the challenge to the validity of the arrest were presented in a vacuum, that is, on a record void of evidence relating to the issue, we would have no hesitation in rejecting outright, as did the Courts in Robinson and Sykes, the allegation of "plain error." Since the United States Attorney had no reason to anticipate this belated attack on the arrest and seizure, he understandably failed to fully develop all of the minute circumstances relating to this aspect of the case. The orderly administration of justice requires adherence to clearly defined rules designed to apprise the trial judge of an opportunity to consider and pass upon claimed errors.

Nevertheless, the circumstances attending the arrest were explored in the hearing on the motion to suppress to such an extent as to enable us to reach a definitive conclusion on the merits of the question.

The Supreme Court in a series of cases has...