469 F.2d 713 (5th Cir. 1972), 72-1332, United States v. Gulledge

Docket Nº:72-1332.
Citation:469 F.2d 713
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Julius L. GULLEDGE et al., Defendants, Carl Hathcock, Defendant-Appellant.
Case Date:November 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 713

469 F.2d 713 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Julius L. GULLEDGE et al., Defendants, Carl Hathcock, Defendant-Appellant.

No. 72-1332.

United States Court of Appeals, Fifth Circuit.

November 20, 1972

Page 714

Clyde W. Woody, Marian S. Rosen, Houston, Tex., for defendants.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before DYER, SIMPSON and MORGAN, Circuit Judges.

DYER, Circuit Judge:

A jury convicted Hathcock on two counts of transporting in interstate commerce more than $5,000 of property known to be stolen, in violation of 18 U. S.C.A. § 2314, and on one count of conspiracy in violation of 18 U.S.C.A. § 371. One of the § 2314 counts charged Hathcock together with Gulledge, Mosley, and Haynes with transporting 124 cases of stolen whiskey from Houston, Texas, to Selmer, Tennessee; the other § 2314 count charged that Hathcock and Mosley transported 147 cases of stolen liquor from Houston to Bossier City, Louisiana. The § 371 count charged all four of the co-defendants with conspiring to commit a substantive violation of § 2314. 1

Page 715

Hathcock urges on appeal that the district court erred in its admission of certain evidence, that the court's jury instructions were clearly erroneous, and that the evidence taken as a whole was insufficient to support his conviction. We affirm.

The Bossier City Search

On May 7, 1967, two men left a U-Haul trailer at a service station in Bossier City, Louisiana, attended by James Cobb. The men, one of whom Cobb equivocally identified in court as Hathcock, indicated that their car was running hot and asked permission to leave the trailer parked at the station for "two or three days." Curiously, although the two never gave Cobb any identification, they stated that "everything we own is in the trailer." Ten days later when the men failed to return, Cobb became suspicious and called the Sheriff. The Sheriff and several deputies arrived at the service station on May 18, and, without a search warrant, opened the trailer. It was stacked full of cases of liquor which were later identified as part of the whiskey that had been stolen from the Quality Beverage Company in Houston on April 21, 1967.

During Hathcock's trial no motion to suppress was made, nor was any objection raised, concerning the testimony as to this episode. Because there is more than sufficient evidence to support the conclusion that the trailer had been abandoned at the time of the Sheriff's search, the admission of evidence regarding the fruits of his discovery does not constitute plain error. It is clear that the personal right to Fourth Amendment protection of property against search and seizure is lost when that property is abandoned. United States v. Edwards, 5 Cir. 1971, 441 F.2d 749, 751-753; see United States v. Jordan, 2 Cir. 1968, 399 F.2d 610, 614.

The Selmer, Tennessee, Search

Berry (Junior) Smith was the proprietor of the Old Hickory Grill in Guys, Tennessee. Hathcock and the other three co-defendants came into his tavern on the morning of May 10, 1967, inquiring if Smith was interested in purchasing a substantial amount of liquor. While beer is legal in McNairy county, where Guys is located, the county is dry as far as liquor is concerned, and apparently Smith had been known to deal in bootleg whiskey in the past. Smith was told that he could get "a real good price" ($40 per case) if he would buy "five or six hundred cases."

Smith replied that he would have to go into town to see if he could raise enough money. Instead, he called Sheriff Pusser in Adamsville, Tennessee, and told him that there were four "real tough characters" with "a load of whiskey" at his grill. Informing the Sheriff that at least one of the men was armed and that they had been discussing their participation in a "shoot-out" in Starkville, Mississippi, Smith suggested that the Sheriff hurry and advised him to bring a search warrant. Finally, Smith asked Pusser if he would make a cursory search of the tavern before searching the co-defendants' vehicles so that, in case some of them escaped, none would suspect that Smith had notified the police.

As a result of this report, Sheriff Pusser drove to Selmer, Tennessee, to...

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