401 F.2d 756 (8th Cir. 1968), 19112, Reed v. United States

Docket Nº:19112.
Citation:401 F.2d 756
Party Name:Nathaniel REED, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 26, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 756

401 F.2d 756 (8th Cir. 1968)

Nathaniel REED, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19112.

United States Court of Appeals, Eighth Circuit.

September 26, 1968

Page 757

George Howard, Jr., Pine Bluff, Ark., for appellant.

Robert F. Fussell, Asst. U.S. Atty., Little Rock, Ark., for appellee, W. H. McClellan, former U.S. Atty., W. H. Dillahunty, present U.S. Atty., Little Rock, Ark., on the briefs.

Before MATTHES and HEANEY, Circuit Judges, and REGISTER, Chief district judge.

MATTHES, Circuit Judge.

A two-count indictment charged that defendant had violated 26 U.S.C. § 5851. 1 He waived trial by jury. Upon finding defendant guilty as charged, Judge Young sentenced him to imprisonment for a period of 'three years on the indictment as a whole.' This appeal followed.

Omitting its formal parts Count I charged:

'That on or about May 20, 1967, in Pine Bluff, Jefferson County, Arkansas, and in the Eastern District of Arkansas, NATHANIEL REED, defendant herein, knowingly and unlawfully possessed a firearm, as defined by Section 5848(1), Title 26, United States Code, to wit, a weapon made from a 12-gauge shotgun, serial number 799461, with barrel 14 3/8 inches in length and with overall length of

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less than 26 inches, which firearm had been made in violation of Section 5821, Title 26, United States Code, in that the making tax of $200 had not been paid prior to the making of this firearm, and in that, prior to the making of such firearm, there was a failure to file a written declaration of intention to make such firearm, as required.'

Count II was identical with respect to the date and place of the commission of the offense and the description of the firearm. The gravamen of the offense in this count was that the firearm had not been registered with the Secretary of the Treasury as required by 26 U.S.C. § 5841.

The trial, conviction and appeal occurred prior to the decision of the Supreme Court in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (January 29, 1968). Haynes holds that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 26 U.S.C. § 5841 or for possession of an unregistered firearm under 26 U.S.C. § 5851. The Government concedes here that the defendant did not knowingly waive his constitutional privilege against self-incrimination and that the conviction under Count II cannot stand. See Dillon v. United States, 389 F.2d 381 (8th Cir., February, 1968). We agree and reverse the judgment under Count II with directions to dismiss that count.

This result does not dispose of Count I. Where, as here, a general sentence is imposed on more than one count it will be sustained if the defendant was properly convicted under any count. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Isaacs v. United States, 301 F.2d 706, 733 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). Defendant implicitly recognizes the validity of this proposition.

The questions at issue on appeal are: (1) whether the district court erred in denying defendant's motion to suppress the firearm because the search and seizure was unlawful and unreasonable; (2) whether the conviction of the offense of possession of the firearm made in violation of § 5821 is subject to the same infirmity of the offense of possession of an unregistered firearm. More precisely, do the facts bring this case within the principle promulgated in Haynes and the related cases of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (January 29, 1968).

PROBABLE CAUSE

Defendant challenged the validity of the search and seizure by a pre-trial motion to suppress in which he asserted that there was no probable cause for the arrest. After a full evidentiary hearing the court denied the motion. The evidence developed on the motion established that defendant was arrested by police officers without a warrant in the City of Pine Bluff, Arkansas. They acted in large measure upon information received from Gene Holland, the operator of the Rose Oil Service Station, located at 4211 Dollarway Road in Pine Bluff. Holland, whose testimony stands uncontradicted, stated that at approximately 2:45 a.m. on May 20, 1967, three automobiles 'pulled up' to his station. One was a red and white 1960 or 1961 Chevrolet. Another, a 1955 white four-door Ford. The third, a dove-colored Falcon or Fairlane Ford. The occupants of the automobiles were Negroes. The driver of the Chevrolet purchased a small quantity of gasoline for which he paid $1.00. Holland observed the occupant of the 1955 Ford open the trunk of that automobile, remove a sawed-off shotgun and place the gun in the front seat or on the floorboard. Three of the group 'huddled right there together * * * and was talking.' He also saw one of the 'boys' remove a pistol from the 1955 Ford and 'stick' it in his pocket. Another went to the other side and 'got one (pistol) and stuck it in his pocket, * * *.'

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Thereupon the three automobiles left in 'kind of a hurry.' Immediately there-after, Holland telephoned police headquarters, identified himself and detailed what he had witnessed. He was aware of a burglary of another Rose Oil Service Station. Additionally, he had called upon the police for assistance on three prior occasions: 'one was for drunk'; 'one was for a wreck'; and 'one was for pulling a gun on me * * *.'

When Holland was pressed on cross examination for the reason he reported the matter to the police, he stated: 'Well, I thought-- I thought they was aiming to rob the station. That's the reason I called them. That's the most reason I called the law.'

Holland's telephone message to police headquarters was relayed by radio to members of the Pine Bluff police force at approximately 3:00 a.m. The dispatcher described the three...

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