484 F.2d 418 (5th Cir. 1973), 72-2181, United States v. Brown

Docket Nº:72-2181.
Citation:484 F.2d 418
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hubert Geroid BROWN, Defendant-Appellant.
Case Date:August 22, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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484 F.2d 418 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Hubert Geroid BROWN, Defendant-Appellant.

No. 72-2181.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1973

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[Copyrighted Material Omitted]

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William M. Kunstler, New York City, Edward Carl Broege, Newark, N. J., Murphy W. Bell, Baton Rouge, La., David J. Dennis, New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazales, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee; Louis C. LaCour, U. S. Atty., Horace P. Rowley, III, Gene S. Palmisano, Robert O. Homes, Jr., Harry F. Connick, Asst. U. S. Attys., on the brief.

Before BELL, GOLDBERG and SIMPSON, Circuit Judges.

BELL, Circuit Judge:

This appeal is from a judgment of conviction entered on a jury verdict finding defendant guilty of transporting a firearm from New Orleans to New York while a passenger on Delta Airlines flight 818 in violation of 15 U.S.C.A. § 902(e). 1 (The Federal Firearms

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Act) He was found not guilty on one additional count charging transportation of the same firearm from New York to New Orleans on a previous day. The gravamen of the offense was that he transported the firearm while under indictment. The contested fact issue was whether defendant knew at the time that he was under indictment in Maryland.

I.

The somewhat contorted history of this case, with the long delay between conviction in 1968 and the present appeal, is the result of two prior appeals. On April 3, 1969, in accordance with the procedure followed in Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, this court remanded the case to the district court for a hearing to consider the effect of certain evidence obtained by wiretapping. (Unreported order dated April 3, 1969 in Brown v. United States, No. 26,249).

Following an Alderman hearing and in camera inspection, the district court, 317 F.Supp. 531 (E.D.La.1970), found that three of the four documents containing wiretapped conversations (Exhibits 1-1, 1-2, and 1-3), were obtained by electronic surveillance authorized by the Attorney General and made solely for the purpose of gathering foreign intelligence. As to these three foreign intelligence wiretaps, the court held (1) that they were legal, albeit warrantless, and (2) that the information contained therein was in no way related to the prosecution's case. The district court therefore ordered that the contents of the wiretaps would not be disclosed to defendant.

The fourth document (Exhibit 1-4), contained information overheard by Louisiana state officials who monitored some of the telephone conversations of prisoners in their custody by listening on a telephone extension. The federal government used the state jail facilities in New Orleans for holding federal prisoners. After indictment and while incarcerated in the state facility, jail officials recorded some of defendant's conversations and passed one recording to New Orleans police. The substance of this recording was then divulged to an F.B.I. agent who incorporated it in a memorandum which is Exhibit 1-4.

The only part of Exhibit 1-4 which is related to defendant's case is the report of a conversation between defendant Brown and his attorney, William Kunstler, Esq., as follows:

At approximately 2:30 PM, on February 29, 1968, H. Rap Brown telephonically contacted his attorney William Kunstler in New York City. Brown advised Kunstler that New Orleans was "ready to go" as was Baton Rouge which was especially "hot" at Southern University in that city. Brown indicated that all that was necessary was mobilization of forces and he requested that Stokley Carmichael come to New Orleans on March 2, 1968. Kunstler stated he would attempt to make arrangements with Carmichael and that Carmichael would most likely also travel to Baton Rouge, Louisiana.

Kunstler advised Brown that he had obtained 30 minutes of time on three radio stations (location not indicated) and that a big press release had been prepared regarding Brown's cause. Kunstler indicated that Brown has the full cooperation of all Civil Rights organizations.

Kunstler advised that Ed Milbrook (Phonetic) would be visiting Brown at the Orleans Parish Prison, New Orleans, Louisiana, where he is presently incarcerated. Kunstler stated that Brown could expect to remain in Orleans Parish Prison until March 20, 1968, at which time Kunstler would attempt to obtain his release for return to New York City.

While finding Exhibit 1-4 to be the product of illegal surveillance, the district court held that the information obtained in no way prejudiced defendant or tainted his conviction.

Following the district court's findings on the wiretap claims, this case was

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again appealed to this court. However, at some point in the proceedings Brown became a fugitive from justice. Consequently a panel of this court ordered the appeal stricken from the docket but on condition that it be reinstated if and when it should be made known to the court that Brown was subject to the court's jurisdiction. United States v. Brown, 5 Cir., 1972, 456 F.2d 1112. Finally, in June of 1972, Brown appeared before the district court and was re-sentenced to five years imprisonment and a fine of $2,000. This appeal followed. We affirm.

II.

There are seven assignments of error to be considered on this appeal:

(1) the government's proof of an essential element of the crime, actual knowledge of the Maryland indictment, was insufficient as a matter of law;

(2) the court's instructions on the issue of actual knowledge were contradictory and prejudicial;

(3) the court should have granted defendant's motion for a change of venue because the security measures employed at his trial denied him a fair trial;

(4) 15 U.S.C.A. § 902(e) is unconstitutional for the reasons that in prohibiting a person under indictment from carrying firearms, the statute imposes an arbitrary classification and also violates the individual's right to be presumed innocent;

(5) the alleged invalidity of the Maryland indictment necessitates a reversal;

(6) the overhear of counsel in the telephone conversation between defendant and his attorney (Exhibit 1-4, supra), violated defendant's right to counsel under the Sixth Amendment and mandates at least a new trial, and

(7) the court erred in refusing to hold an adversary hearing on the relevance of the materials contained in Exhibits 1-1, 1-2, and 1-3, discussed supra.

We will consider these assignments of error seriatim.

III.

First, as to lack of proof, 15 U.S.C.A. § 902(e), under which defendant was convicted, provides that "[I]t shall be unlawful for any person who is under indictment . . . to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition." To prove a violation of § 902(e) it must be shown that a defendant actually had knowledge of a pending indictment while he transported a firearm in interstate commerce. Cf. Costello v. United States, 8 Cir., 1958, 255 F.2d 389, 396.

Defendant argues that the government's proof of his actual knowledge of the pending Maryland indictment was insufficient as a matter of law. On appeal the jury's finding of actual knowledge must be sustained if there is substantial evidence taking the view most favorable to...

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