U.S. v. Roberts

Decision Date16 June 1980
Docket NumberNo. 79-5451,79-5451
Citation619 F.2d 379
Parties80-2 USTC P 16,344, 6 Fed. R. Evid. Serv. 292 UNITED STATES of America, Plaintiff-Appellee, v. Bryan ROBERTS, a/k/a Sailor Roberts, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John R. Lee, Kermit, Tex., Victor R. Arditt, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN and POLITZ, Circuit Judges, and SMITH *, District Judge.

ALVIN B. RUBIN, Circuit Judge:

Bryan Roberts was convicted after a jury trial of conspiracy to operate an illegal gambling business, 18 U.S.C. § 371, operating such a business, 18 U.S.C. § 1955, and failure to file a special tax return with the Internal Revenue Service before receiving wagers on sporting events, 26 U.S.C. § 7203. He seeks reversal on the grounds that the district judge erroneously refused to suppress evidence seized at his apartment and improperly admitted evidence of a prior conviction. Because we find both contentions to be without merit, we affirm.

I.

Deputy sheriffs arrived at Bryan Roberts's El Paso, Texas apartment to execute a search warrant issued by a state judge. The warrant authorized search for a stolen television set. After Roberts answered the officers' knock at the door of his apartment, they entered the apartment where they discovered the stolen television set and took Roberts into custody.

In the living-dining area of the apartment where they found the television set, the deputies observed two tables upon which telephones, calculators and papers were arranged. After Mr. Roberts was secured, one of the deputies glanced at the tables and noticed a football score sheet next to one of the telephones. This telephone receiver was off the hook; the officer picked it up and said "hello." The party on the line replied, "give me Southern California minus 4." Convinced that they had discovered an illegal gambling operation, the deputies contacted the F.B.I. Federal agents arrived and they joined the local police in seizing evidence of the operation from the tables and from open closets in the living-dining area of the apartment. Roberts's motion to suppress the evidence was denied and much of it was introduced at trial.

It is not disputed that all the evidence sought to be suppressed was in the plain view of the officers as they moved about the apartment while executing the state-issued search warrant. Nevertheless, Roberts contends that, because the officers had to read the papers on the tables before they could determine that he was running a gambling operation, the discovery that the materials were evidence of a crime was made by a search beyond the purview of the "plain view" doctrine enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

We have held that the seizure of material cannot be justified by the plain view theory when the incriminating or evidentiary character of the material becomes known only after close inspection. See United States v. Robinson, 535 F.2d 881, 885-86 (5th Cir. 1976) (opening of brown paper bag and inspection of envelopes inside). See also United States v. Scios, 590 F.2d 956 (D.C.Cir. 1978) (en banc) (folder opened and read to determine incriminating character); United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971) (papers opened and read); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973) (photographic negatives held up to light and examined). Coolidge restricts the "plain view" doctrine to "inadvertent" discoveries of evidence by police officers acting within the scope of an otherwise justified intrusion. 403 U.S. at 469-70, 91 S.Ct. at 2040, 29 L.Ed.2d at 585; United States v. Bolts, 558 F.2d 316, 320 (5th Cir. 1977), cert. denied, 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1978). Such careful police examination of the contents of items expands the observation of what was originally in "plain view" into a general exploratory search.

Here, however, the incriminating character of the items seized was apparent to the police officers by casual inspection. A mere glance at the papers on the table revealed a football scoresheet. The appearance of the apartment suggested a business operation. These two facts were enough to give the deputies reason to believe that they had unwittingly discovered a bookmaking operation. Once they were alerted to the existence of the operation, they had probable cause to believe that the items were evidence and, because they were legitimately in a position to seize the evidence, requiring them to obtain a warrant would have been a "needless inconvenience" unrelated to protection of any fourth amendment interests. See Coolidge, 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584.

Police officers are not required to ignore the significance of items in plain view even when the full import of the objects cannot be positively ascertained without some examination. Thus, we have held the seizure of address books in plain view valid even though the officer first paged through them because the officer had "recognized that the address books might be of significance before he leafed through them." United States v. Diecidue, 603 F.2d 535, 559 (5th Cir. 1979). We also have approved the seizure of weapons discovered in plain view, although the police did not know whether or not the weapons were properly registered. See United States v. Bills, 555 F.2d 1250 (5th Cir. 1977). Because the initial intrusion in this case was justified, and the subsequent observation of the gambling paraphernalia and determination of their character was inadvertent, the seizure was proper under the plain view doctrine.

Contrary to defendant's assertions, the decision to communicate with the F.B.I. and await the arrival of federal officers before seizing the evidence does not affect the validity of the seizure. The state officers seized and took custody of the evidence as they would have done regardless of the presence of federal officers. There was no attempt by the state or federal officers to utilize the plain view doctrine to avoid the requirement of obtaining a warrant. Cf. United States v. Sanchez, 509 F.2d 886, 889 (6th Cir. 1975) (state warrant to search for narcotics could not be used to validate entrance of federal officer accompanying state police when that officer had probable cause and the opportunity to secure a warrant to search for other contraband, which he subsequently found "in plain view."). In similar circumstances we have held that, after "a lawful intrusion has already occurred and a seizure by a State officer has validly taken place as a result of that intrusion, the invasion of privacy is not increased by an additional officer, albeit a federal officer, who is expert in identifying the type of contraband discovered, (entering) the premises to confirm the belief of the State officer and to take custody of the evidence." United States v. Green, 474 F.2d 1385, 1390 (5th Cir.), cert. denied, 414 U.S. 829, 94 S.Ct. 55, 38 L.Ed.2d 63 (1973).

II.

During the trial, the government informed defense counsel that it intended, as part of its case in chief, to introduce the defendant's prior conviction of a gambling offense. Defense counsel argued that this evidence should not be admitted unless the defendant raised the issue of intent in his defense. The trial court ruled that Roberts's plea of not guilty itself raised the issue of intent, thus making this particular prior conviction relevant.

Rule 404(b) of the Federal Rules of Evidence permits the admission of extrinsic offense evidence to prove intent as well as certain other issues. Whether a not guilty plea of itself sufficiently raises the issue of intent to make extrinsic offense evidence admissible in the government's case in chief is a question we have reserved in our previous decisions. See United States v. McMahon, 592 F.2d 871, 876 n.7 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979); United States v. Beechum, 582 F.2d 898, 915 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979); United States v. Adderly, 529 F.2d 1178, 1181-82 (5th Cir. 1976); United States v. Urdiales, 523 F.2d 1245, 1247 (5th Cir. 1975), cert. denied, 434 U.S. 1071, 98 S.Ct. 1253, 55 L.Ed.2d 774 (1978). In each of those cases, in contrast to the case now before us, the prosecution had some reason, in addition to the defendant's not guilty plea, to anticipate that the defendant would deny criminal intent. Here the prosecution had no reason to anticipate a denial of criminal intent, and the defendant never openly made it an issue. Thus, the question preserved in our prior cases is now properly before us.

We have established a two-prong test for determining whether extrinsic offense evidence is admissible to prove intent. See United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). If "the extrinsic offense requires the same intent as the charged offense and . . . the jury could find that the defendant committed the extrinsic offense," id. at 913, then "the extrinsic offense evidence is relevant to an issue other than the defendant's character," id. at 911, and satisfies the first requisite of Beechum. Beechum also requires that "the evidence . . . possess probative value that is not substantially outweighed by its undue prejudice . . . ." Id. We noted in Beechum that the second requirement is generally not satisfied when the defendant's intent is uncontested because, in that case, "the incremental probative value of the extrinsic offense is inconsequential when compared to its prejudice." Id. at 914. 1

Charges of conspiracy involve considerations not present in other criminal prosecutions. "(T)he offense of conspiracy requires an element of intent or...

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