United States v. Melancon

Citation462 F.2d 82
Decision Date21 July 1972
Docket NumberNo. 71-3235.,71-3235.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Theodore Ray MELANCON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

Dennis R. Whalen, Baton Rouge, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Robert S. Leake, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Before RIVES, COLEMAN and DYER, Circuit Judges.

COLEMAN, Circuit Judge:

Theodore R. Melancon was charged in a twelve count indictment with unlawful possession of firearms not registered to him in the National Firearms Registration and Transfer Record or not identified by serial numbers as required by part of the new Gun Control Act of 1968 (codified as 26 U.S.C., §§ 5801 through 5872), as amended October 22, 1968, Public Law 90-618, 82 Stat. 1213, which amended in toto the provisions of the National Firearms Act (codified as 26 U.S.C., §§ 5801 through 5862). 26 U.S.C., §§ 5861(d) and 5861(i).

Counts I, II, III, IV, VI, VIII, X and XII charged the appellant with knowingly and unlawfully possessing on or about February 11, 1971, one Russian PPsh Machine Pistol, Model M-1946, Caliber 7.62 mm; one Russian PPS Machine Pistol, Model M-1944, Caliber 7.62 mm; one Colt AR-15 Semi-Automatic rifle, SP-1, Caliber .223; one 50 mm Japanese Knee Mortar; ten military incendiary grenades, Model Nos. TH, AN-M-14; five military simulator grenades, Model M116A1; five military simulator ground burst explosive devices, Model Nos. M115A2, and six military 3.5 inch bazooka practice rockets, Model Nos. M29A2, all in violation of 26 U.S.C., § 5861(d) which provides:

"Section 5861. Prohibited Acts.
"It shall be unlawful for any person—
* * * * * *
"(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.
* * * * * *"

Counts V, VII, IX and XI charged the appellant with knowingly and unlawfully possessing on or about February 11, 1971, ten military incendiary grenades, Model Nos. TH, AN-M-14; five military simulator grenades, Model M-116A1; five military simulator ground burst explosive devices, Model No. M115A2, and six military 3.5 inch bazooka practice rockets, Model No. M-29A2, all in violation of 26 U.S.C., § 5861(i) which provides:

"Section 5861. Prohibited Acts.
"It shall be unlawful for any person—
* * * * * *
"(i) to receive or possess a firearm which is not identified by a serial number as required by this chapter; or
* * * * * *"

At the request of the government, Count III was dismissed. The government conceded that the rifle described in Count III was a weapon which lawfully could be possessed in an unregistered state. After completion of the government's case, the District Court granted a judgment of acquittal, ex proprio motu, as to Counts V through XII. Thereafter, the District Court denied appellant's motion for a judgment of acquittal as to the remaining counts. Thus, Counts I, II and IV were left for the verdict of the jury.

The jury found Melancon not guilty on Count II knowingly and unlawfully possessing one Russian Machine Pistol, Model M-1944, Caliber 7.62 mm. Melancon was found guilty on Counts I and IV knowingly and unlawfully possessing one Russian PPsh Machine Pistol, Model M-1946, Caliber 7.62 mm, and one Japanese Knee Mortar. He was committed to the custody of the Attorney General for imprisonment for a period of three years with the provision that he be confined in a correctional institution for a period of six months and that the execution of the remainder of the sentence be suspended.

Appealing from his conviction and sentencing, appellant's appeal raises the following questions to be resolved by this Court:

I
Was the affidavit sworn to by the two Louisiana State Police Officers and upon which the issuance of the search warrant was based constitutionally defective under the Fourth Amendment to the United States Constitution in that such affidavit contained facts and circumstances insufficient to enable the judicial officer to find requisite probable cause to issue the search warrant?
II
Was the affidavit sworn to by the two Louisiana State Police Officers and upon which the issuance of the search warrant was based constitutionally defective under the Fourth Amendment to the United States Constitution in that such affidavit rested largely on hearsay information not satisfying the standards prescribed by the Supreme Court\'s decision?
III
Was the search warrant constitutionally defective and thus invalid in that it failed to describe the place to be searched with the degree of particularity required by the Fourth Amendment to the United States Constitution?
IV
Is there sufficient evidence in the record to sustain appellant\'s conviction by jury for knowingly and unlawfully possessing one Russian PPsh Machine Pistol, Model M-1946, Caliber 7.62 mm in violation of 26 U.S.C., § 5861(d)?
V
Is there sufficient evidence in the record to sustain appellant\'s conviction by jury for knowingly and unlawfully possessing one Japanese Knee Mortar in violation of 26 U.S.C., § 5861(d)?

Questions I, II, and III arise from appellant's claim that it was error not to suppress all evidence flowing from the February 11, 1971, search of his residence. This claim is grounded on the argument that the search warrant issued as to his premises was invalid because it was based on a defective supporting affidavit sworn to by the two Louisiana State Police Officers and because it was constitutionally insufficient on its face.

On February 10, 1971, Special Investigator Charles Wernette of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service, United States Treasury Department, met John Edward Kirsch at a motel room in New Orleans, Louisiana, and purchased from him one unregistered M-2 automatic carbine, one unregistered pine-apple type fragmentation grenade, and a flame thrower. Following the purchase, Kirsch informed Agent Wernette that he had a friend in Baton Rouge that had additional weapons (including machine guns, hand grenades, and thermite grenades). At this point, Agent Wernette expressed his interest in purchasing such additional weapons, and thereafter accompanied Kirsch to Baton Rouge in Kirsch's pickup.

Upon arrival in Baton Rouge, Kirsch and Agent Wernette went to the Bellemont Motel whereupon Kirsch made a telephone call to his friend. During the telephone conversation, Agent Wernette overheard Kirsch say, "Is this the Ted Melancon who works for the phone company?" After talking on the telephone for approximately five minutes, Kirsch returned to Agent Wernette and informed him that he was going to his friend's house to pick up some additional weapons and some ammunition. Kirsch said that he would return in an hour and a half to two hours so Agent Wernette waited at the motel, having failed in his attempts to accompany Kirsch to his friend's house.

At approximately 8:30 to 8:45, Kirsch returned. Agent Wernette went to the vehicle and at this point, Kirsch showed Wernette a Russian machine pistol. Besides the Russian machine pistol located in the cabin of the pick-up truck, Wernette observed (in the bed of the truck) some 30 caliber carbine ammunition and some 7.62 ammunition for the Russian machine pistol.

During the return trip to New Orleans, the Russian machine pistol remained lying on the front floorboard of the pick-up truck. Upon arrival at a motel Wernette looked the weapon over, agreed on a purchase price, and paid for the weapon. As Kirsch was leaving the room, he was arrested by Investigators of the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service for selling an unregistered firearm.

After Kirsch's arrest, Wernette and other agents of the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service returned to Baton Rouge in search of the man telephoned by Kirsch in Wernette's presence. On February 11, 1971, they contacted two Louisiana State Police Officers, Captain Vidrine and Lieutenant Denison, and requested their assistance in locating someone named "Ted". The Internal Revenue Agents gave the two Louisiana State Police Officers the known facts connecting Ted with the sale of the unregistered firearm by Kirsch in the New Orleans motel room. The State Police Officers were also informed by the Internal Revenue Service Agents that part of Ted's phone number was known, that Ted was employed by the telephone company, and that he lived near Brusly, Louisiana. Later at the Louisiana State Police Headquarters and upon the arrival of other agents of the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service, it was determined that the full name of Ted was Ted Melancon.

Possessing the knowledge that the man sought by the Internal Revenue Service Agents was named Ted Melancon and that he was employed by the telephone company, Lieutenant Denison called a security officer of the telephone company, and asked him if he knew of a Ted Melancon working for the telephone company. The response was affirmative. Thereafter, the officers were able to determine that Ted Melancon was Theodore R. Melancon, Route 2, Box 623, Port Allen, that he operated a gun shop known as Melancon's Guns, and that he held Federal Firearm License No. 72-1786.

Leaving the Louisiana State Police Headquarters, the Internal Revenue Agents and the two Louisiana State Police Officers proceeded to the West Baton Rouge Sheriff's Office to enlist the aid of the Deputy Sheriffs. Because Ted Melancon was a Special Deputy for the Parish of West Baton Rouge and had at one time sold ammunition to the Sheriff's Office, the Deputy Sheriffs present were found to be quite familiar with Ted Melancon and his residence. Based on the information supplied by the Deputy Sheriffs, the affidavit was changed by the insertion of the words "brick" and "including house trailers" so as to describe the...

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