465 F.2d 147 (5th Cir. 1972), 71-2848, United States v. McCann

Docket Nº:71-2848.
Citation:465 F.2d 147
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Patrick W. McCANN, III and Jon Joseph Kelly, Defendants-Appellants.
Case Date:June 12, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 147

465 F.2d 147 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Patrick W. McCANN, III and Jon Joseph Kelly, Defendants-Appellants.

No. 71-2848.

United States Court of Appeals, Fifth Circuit.

June 12, 1972

Page 148

[Copyrighted Material Omitted]

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Emmett Colvin, Jr., Dallas, Tex., for McCann.

Lawrence B. Mitchell, Charles W. Tessmer, Ronald L. Goranson, Frank S. Wright, Dallas, Tex., for Kelly.

Eldon B. Mahon, U. S. Atty., Andrew Barr, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Before RIVES, COLEMAN and DYER, Circuit Judges.

COLEMAN, Circuit Judge:

The appellants, Jon Joseph Kelly and Patrick McCann, III, were both charged in each count of a four count indictment with unlawfully intercepting and endeavoring to intercept wire communications in November and December, 1969, and January, 1970, originating from telephones at four Dallas area residences, all in violation of 18 U.S.C. § 2511(1) (a).

Both appellants pleaded not guilty and were tried before a jury in the United States District Court for the Northern District of Texas. They were found guilty on all four counts of the indictment.

On September 9, 1971, the appellants were sentenced to three years imprisonment on each count of the indictment. All sentences imposed were to run concurrently with one another.

Appellants contend (1) that the trial court erred in denying appellants' motion to suppress and in admitting products of and evidence resulting from illegal searches and seizures in violation of their rights under the Fourth and Fifth Amendments to the Constitution of the United States; (2) that the evidence was insufficient to support the conviction; (3) that the instructions given by the trial court to the jury were erroneous; (4) that the trial court erred when it failed to dismiss the indictment against the appellants since it did not negate all the statutory exceptions listed in 18 U.S.C. § 2511(1) (a); (5) that the government's evidence showed that the offense committed, if any, was not in violation of 18 U.S.C. § 2511(1) (a) as alleged in the indictment; and (6) that

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the failure of the trial court to admit defendants' Exhibit 1-A was erroneous.

We find no merit in any of these contentions and the judgments of conviction are affirmed.

Because appellants have challenged the sufficiency of the evidence to sustain the jury verdict and the correctness of the trial court's denial of their motion to suppress, the evidence produced on the motion to suppress and at the trial will be discussed in some detail.

I

Testimony given at the pre-trial hearing on the motion to suppress disclosed that the events which led to the arrest of Kelly and McCann began on Friday, January 9, 1970, when Mrs. Dorothea Jamison, a resident of 2405 Grandview Street in Richardson, Texas, telephoned the Richardson Police Department to complain about a 1970 blue Ford Torino, Texas License No. FLM 584, which had been parked overnight near her home. Mrs. Jamison told the police that neither she nor her neighbors knew to whom the car belonged.

In response to her complaint, Police Investigator Jerrold Sanders determined that the car was owned by a Hertz Rent-A-Car Agency which had its office on Preston Road in Dallas and that it had been rented to Jon Joseph Kelly on January 6, 1970. In the rental agreement Kelly listed his home address as 2744 Briarhurst, Houston, Texas, and his local address as the Holiday Inn Central. Sanders also discovered that when Kelly arrived to rent the Torino he was riding in a Ryder Rent-A-Truck driven by another white male.

Subsequent inquiry at the Holiday Inn Central revealed that Kelly had checked in on January 5, 1970, and had checked out on January 10. On his registration card, he had listed his last address as the Hilton Inn on Central Expressway in Dallas.

Officer Sanders also determined that Kelly had rented a panel truck from Ryder Rent-A-Truck Agency in Dallas on January 5, 1970, where he had given his local address as the Hilton Inn on Central Expressway.

Sanders then called the Hilton Inn on Central Expressway and discovered that no one with the name "Jon Joseph Kelly" had been registered there.

On January 12, 1970, Sanders was told by the Hertz Agency that Kelly returned the Ford Torino and rented a blue 1970 Mercury station wagon, Texas License No. FKW 929. He was also told that Kelly advised the sales clerk that he had moved to the Holiday Inn North.

Investigation at the Holiday Inn North revealed that Kelly had checked in on January 10, 1970, and was still registered there. The motel manager told Sanders that Kelly instructed the desk clerk not to reveal that he was registered there. On his registration, Kelly listed his home address as 2744 Briarhurst, Houston, Texas, and stated that he was self-employed.

On January 13, 1970, a neighborhood resident reported that a blue Mercury station wagon, Texas License No. FKW 929, had been parked in front of 2410 Grandview sometime during the night of January 12, and remained there until approximately 12:30 p. m. when a man riding in a blue 1970 Ford, Texas License No. RSR 822, stepped out of the Ford, got into the station wagon and drove away.

A check on the registration of the Ford revealed that it was owned by a Hertz Rent-A-Car Agency located at Love Field in Dallas. Inquiry at the agency revealed that the car was rented by Jon Joseph Kelly on January 5, 1970, who listed his local address as the Hilton Inn on Central Expressway.

Because of the suspicious nature of these activities, the Houston Police Department was asked for its assistance. On January 14, 1970, the Houston Police told Sanders that no one with the name "Jon Joseph Kelly" had ever lived at 2744 Briarhurst in Houston.

Further contact with the Holiday Inn North revealed that on January 14, Kelly

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reserved a room next to his for a friend named Ron Adams. When Adams checked in, he stated that he was employed by "A & B Enterprises, 1503 South Post Oak Street, Houston, Texas". Sanders was also told that another man, neither Kelly nor Adams, had paid their motel bill in cash.

Subsequent inquiry revealed that A & B Enterprises was located at a different address in Houston than that given by Ron Adams.

Random checks at the Holiday Inn North by Sanders also revealed that the Mercury station wagon was parked there periodically.

On January 15, 1970, while driving on Grandview, Sanders spotted the Mercury station wagon. Investigating, he looked through a window of the car and observed that there was nothing in the station wagon except some newspapers which completely covered the car's right front floorboard. Sanders noticed that instead of lying directly on the floorboard, the papers were level with the transmission hump which divides the driver's side of the front seat from the passenger's side of that seat.

After returning to the police station, Sanders received a call from Mrs. Jamison who reported that the Mercury station wagon had remained in front of 2410 Grandview during the night of January 14 until about 12:15 p. m. on the 15th when a red Mustang, Texas License No. LYK 591, came down the block and stopped beside the station wagon. She reported that after the car stopped, a white male with blond hair got out of the car and checked the tires on the station wagon. After he checked the tires, she reported that the man got into the station wagon and both cars were driven away.

A registration check on the red Mustang revealed that it was owned by Budget Rent-A-Car located at 2419 Mockingbird Lane in Dallas. Inquiry at the agency revealed the car had been rented to Patrick W. McCann, III, who listed his home address as 8319 Little Drive, Houston, Texas.

On the afternoon of January 15, Sanders received separate telephone calls from Mrs. Jamison and Mrs. Margot Bunday, a resident of 2406 Grandview. Both ladies reported that a white male had left the red Mustang on Grandview at approximately 4:15 p. m. and had driven away with another white male in the Mercury station wagon.

Information which had been collected concerning the cars was discussed on several occasions by detectives of the Richardson Police Department. They had discussed the possibility of the cars being used as a narcotics drop and the possibility that the cars might be connected with thefts which had occurred in the area where they had been parked.

On the morning of January 16, 1970, the Mustang remained parked at 2405 Grandview. Sanders and Detective Ray Pennington investigated and, looking through a window of the car, both officers observed that the vehicle did not contain anything except newspapers which were arranged in approximately the same way as the newspapers had been arranged in the Mercury station wagon on the preceding day. It seemed that the newspapers were being used to conceal some article from view.

At that time, members of the Richardson Police Department began a continuous surveillance of the Mustang. Detective Pennington parked his car on Grandview some distance from where the Mustang was parked. His car was an unmarked four door sedan with a police antenna and a spotlight.

Shortly after noon, Pennington observed a Mercury station wagon, occupied by two white males, drive along Grandview and slow down as it passed the Mustang. Pennington reported the license number of the station wagon to Sanders who determined that its license number matched that of the station wagon rented by Kelly. The car drove on and passed by again, at which time, the men glanced at Pennington.

Sanders observed the station wagon travelling south on Central Expressway and...

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