508 F.2d 1226 (6th Cir. 1974), 73-1876-73-1883, United States v. Dye

Docket Nº:73-1876-73-1883.
Citation:508 F.2d 1226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Edward DYE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willard Eugene CUPP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Harold ERVIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gene GALYON, Defendant-Appellant
Case Date:August 22, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1226

508 F.2d 1226 (6th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Edward DYE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Willard Eugene CUPP, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Harold ERVIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gene GALYON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Sanford BURNETTE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Glen Lester HUGHES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Albert Truman COLLINS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dale LAMBERT, Defendant-Appellant.

Nos. 73-1876-73-1883.

United States Court of Appeals, Sixth Circuit

August 22, 1974

Argued April 9, 1974.

As Amended Sept. 12, 1974, Certiorari

Denied March 17,1975, See 95 S.Ct. 1395.

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[Copyrighted Material Omitted]

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John D. Lockridge, Warren R. Webster, B. Rex McGee (Court Appointed), Charles D. Susano, Jr. (Court Appointed), Roger E. Jenne, Cleveland, Tenn., for appellants; Philip P. Durand, Ambrose, Wilson, Lockridge & Grimm, Bernstein, Dougherty & Susano, Knoxville, Tenn. (of counsel, on briefs).

Carl P. McDonald, Edward E. Wilson, Asst. U.S. Attys., for appellees; John L. Bowers, Jr., U.S. Atty., on brief.

Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

On July 27, 1972 a trailer owned by Superior Trucking Services, Inc. was loaded with 1250 cases of Jack Daniels whiskey at a distillery in Lynchburg, Tennessee for delivery to a warehouse in North Carolina. When the driver who was dispatched to pick up the load of whiskey arrived at Lynchburg, the trailer was not there. The empty trailer was found in Monroe County, Tennessee on July 30. Meanwhile, at about 7:00 o'clock in the evening of July 29 two Knox County, Tennessee deputy sheriffs, acting on a tip, went to the area behind a building at 4666 Walker Boulevard in Knoxville and found a padlocked U-Haul truck parked near the rear of the building. Shortly thereafter the chief deputy sheriff of the County joined them and left the other two deputies in the area while he went for a search warrant After the chief deputy returned, a door at the rear of the building at 4666 Walker Boulevard was forced open, and 100 cases of Jack Daniels whiskey were found in the building. The officers then arranged for a truck to be rented and when it was brought to the location, they loaded the whiskey from the building into the truck. This work was completed by about 4:00 a.m. on July 30 and at that time both the U-Haul truck which had remained unopened and the other rental truck which had been loaded with the whiskey from the building were taken to the county jail. The U-Haul truck was delivered to FBI agents unopened and unsearched.

The chief deputy sheriff testified that he had a report on the stolen whiskey before he went to the Walker Boulevard address but that the search warrant he obtained was for a stolen outboard motor and not the whiskey. He stated that he had no information on the U-Haul truck when he got the warrant for the outboard motor. The sheriff of Knox County also testified that he went to the rear of the Walker Boulevard address at about 11:30 p.m. on July 29 and that the other officers were inside the building where the whiskey was found. He notified the FBI to determine whether a federal offense had been committed since he had had no official reports of stolen whiskey at that time. After the FBI agents took possession of the U-Haul truck it was moved to a privately owned lot. On July 31 the FBI had a key made for the padlock on the rear of the truck. On August 2 a search warrant was obtained from a federal magistrate on the basis of a detailed affidavit. The truck was searched on August 3, and 416 cases of Jack Daniels whiskey were removed from it. This whiskey was identified as being part of the shipment which was stolen on July 27 or 28.

On November 14, 1972 a five-count indictment was returned naming 12 defendants. All of those indicted except the defendant James Edward Dye were charged in count one with a conspiracy to steal the whiskey. A total of 22 overt acts was listed with each of the eleven conspiracy defendants being involved in at least one such act. The second count charged the defendants James Sanford Burnette and James Harold Ervin with the act of stealing and carrying the

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whiskey away and aiding and abetting each other. In the third count, eight of the defendants were charged with possessing the whiskey with knowledge that it had been stolen. The defendants Collins, Frye and Hales, though charged in the conspiracy, were not included in the charges of counts two or three. The fourth and fifth counts named only the defendant James Edward Dye, who had not been named in any of the first three. In count four, Dye was charged with being an accessory after the fact and in count five, with misprision of felony. The charges against Dye referred to transactions between him and the defendant Steven Eugene McFee which occurred shortly after the theft of the Whiskey.

Upon arraignment, all defendants except McFee pled not guilty. McFee pled guilty and gave testimony which implicated the other defendants. At the conclusion of a trial which lasted four days the jury rendered the following verdict:

Count 1: Cupp, Galyon, Lambert, Collins, Burnette, Hughes, Ervin and Hales-- guilty; Frye and Lay-- not guilty.

Count 2: Burnette and Ervin-- guilty.

Count 3: Cupp, Galyon, Burnette, Hughes, Lambert and Ervin-- guilty; Lay-- not guilty.

Count 4: Dye-- guilty.

Count 5: Dye-- guilty.

All who were convicted except the defendant Hales have appealed.

At a pretrial hearing, the government stated that it would not rely on any whiskey taken from the premises on Walker Boulevard nor on the search of those premises. It was stipulated that the only whiskey that would be introduced in evidence would be a portion of that taken from the U-Haul truck by the FBI. It was also agreed that all objections by any defense counsel would be treated as made on behalf of all defendants. At the same time, motions for severance were overruled and a hearing was set on a motion to suppress evidence consisting of the whiskey taken from the U-Haul truck.

The suppression hearing was held on December 8, 1972 and at the conclusion thereof the court ruled that the defendant Frye (who was subsequently acquitted by the jury) was the only one who had standing to object to the search of the U-Haul truck and seizure of the whiskey. Frye was a service station operator who testified that he had leased the truck on July 29 to a person who identified himself as Douglas White and that the truck had been returned to him the following week by the FBI together with a copy of a search warrant and inventory showing that 416 cases of whiskey were removed from the truck on August 3. Subsequently the court ruled that since Frye had leased the truck he was not a person aggrieved within the meaning of Rule 41(e), Fed.R.Crim.P., and that therefore none of the defendants had standing to suppress the evidence. The court went on to hold that even if the defendants did have standing, there was probable cause for issuance of the search warrant by the United States magistrate and that the FBI search of the U-Haul truck and seizure of the whiskey was not 'tainted' by the previous activities of the state officers.

Sufficiency of the Evidence

In oral argument counsel for the government virtually conceded that there was insufficient evidence to sustain the conviction of defendant Burnette under Count 2. Our examination of the record confirms that the only evidence that Burnette engaged in the actual theft of the whiskey was contained in the confession of the defendant Ervin, and the...

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