624 F.2d 1280 (5th Cir. 1980), 79-5418, United States v. Lentz
|Citation:||624 F.2d 1280|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. William Lawrence LENTZ and Raymond Clinton Hullum, Jr., Defendants-Appellants.|
|Case Date:||August 25, 1980|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
[Copyrighted Material Omitted]
Charles O. Grigson, Austin, Tex., for Lentz.
J. P. Darrouzet, Austin, Tex., for Hullum.
Leroy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before AINSWORTH and GEE, Circuit Judges, and HUNTER [*], District Judge.
GEE, Circuit Judge:
In this somewhat bizarre case, a former sheriff of Burnet County, Texas, R. C. Hullum, one of his former deputies, Charles Johnston, 1 and a civilian who had cooperated with law enforcement officers in the past, William Lentz, were indicted for illegal wiretapping. 2 The trial court granted motions for acquittal on count four, but Lentz and Hullum were convicted by a jury of the remaining three counts of the indictment. The government elected to proceed to sentencing on the conspiracy conviction and only one substantive offense as to each defendant. Hullum was sentenced to concurrent sentences of one year imprisonment on each of the two counts, with the court ordering that he be released as if on parole after serving nine months. Lentz received
the same concurrent terms of imprisonment and was ordered to be released as if on parole after serving six months. They now appeal to this court, and we affirm.
Sometime in mid-February 1979, Hullum, who was then the duly elected sheriff of Burnet County, discussed with his chief deputy, Jack Hall, Hullum's interest in curtailing illegal drug traffic in the county and his belief that a house on Mormon Mill Road was occupied by two women 3 who were involved in that traffic. Hall testified that a search warrant had been executed on the house the preceding August, yielding a little marijuana, but that he knew of no intelligence information on any drug operation there in February 1979. According to Hall, Hullum suggested that a phone tap be made on the Maddox residence's line. Both men seemed aware that the proposed tap would be illegal.
At about this same time, Sheriff Hullum also suspected that another residence in the county, this one in the Granite Shoals area and wholly unconnected with the drug traffic problem, was a repository for stolen property. Hall testified that he explained to Hullum that it would take time to get a confidential informant within the stolen goods ring to work undercover for the sheriff's office. At that point, Hullum asked Hall to break into the house to obtain serial numbers from the stolen property so that a search warrant could be executed and suggested that Hall enlist the assistance of William Lentz, a civilian who had previously served in a confidential informant capacity for law enforcement officers. 4 Evidently Hullum repeated his request for a break-in several times over the next few days.
Deputy William Fargo was Burnet County's representative on the Organized Crime Unit 5 and spent much of his time in Austin. Hall discussed with Fargo the sheriff's plans to wiretap the house on Mormon Mill Road and to break into the house at Granite Shoals. Fargo in turn talked to Lieutenant Bobby Simpson of the Austin Police Department, the head of the Organized Crime Unit, and Special Agent Robert Hogland of the Federal Bureau of Investigation. A few days later, Hall met with Simpson, Hogland, and Fargo in Austin, at which time Hall told the men of Hullum's ideas. Simpson provided Fargo and Hall with recording equipment to wear during their conversations with Hullum. Later the FBI provided Fargo with a more compact recording unit than that provided by Simpson.
The next day, March 8, Hullum, Hall, and Fargo met out in the countryside at a roadside rest area. Hall wore a microphone that Simpson had given him; the receiver and a recorder were in the trunk of Fargo's car. Hall asked Hullum if he still wanted to tap the telephone line from the Maddox residence, and Hullum answered in the affirmative, stating that his informant was a person who shared a party line with Maddox and that the tap would be the only effective way to discover the activities of the smuggling operation. Hullum suggested that Lentz be brought in to do the actual tapping and that he also be approached about the break-in at the Granite Shoals residence.
In the evening of the following day, Hullum, Hall, and Fargo, joined by Lentz, met at Bear Creek Cemetery in Burnet County. Hall again wore a microphone to tape the conversation. During this meeting Hullum told Lentz that he was about to discuss with him the most serious thing he had ever been
involved in and that they could be in serious trouble if it were not handled correctly. Hullum then asked Lentz to tap the Maddox telephone line. Lentz evidently was enthusiastic about the operation and agreed to the wiretap; he explained that his primary problem would be finding a spot from which he could set up and tap the line and volunteered to get any needed equipment from a friend, at which point Hullum again reminded him that the operation was illegal. Hullum also stressed to Lentz the fact that, if anyone were caught, he would be doing "federal time." Nevertheless, Lentz was undeterred; he even indicated that he would be willing to take the blame alone should the illegal activity be uncovered.
Hullum left this meeting briefly to get some equipment that Lentz might be able to use. 6 While he was gone, Fargo and Hall explained the break-in operation at Granite Shoals to Lentz, who also seemed willing to undertake that task, and discussed various ways to get into the house undetected.
Another meeting was held at Bear Creek Cemetery four nights later. The same participants were present as at the previous meeting there, with the addition of Deputy Johnston. This time Deputy Fargo wore recording equipment provided by the FBI. Lentz told the others that he had obtained the proper equipment with which to tap the line, and he and Hullum discussed the details and location of the tap. Finally, a site near the Maddox house that was hidden from the road during the day was selected. Hullum and Lentz again discussed the illegality of the operation, and Lentz repeated his offer to take all the blame if they were caught. The break-in operation at Granite Shoals was also discussed briefly. Lentz and Johnston left the meeting together to pick up the pole-climbing equipment that Lentz had borrowed from a friend, with the explanation that he needed it to hang a night light from a pole. The five men reassembled at the prospective wiretap site and, after looking around, decided to meet in the sheriff's office the next morning to make final plans.
At that morning meeting, Deputy Fargo again wore a microphone and recording equipment. The plans as finally made called for Hall and Lentz to drive with Fargo to the wiretap site in a borrowed truck. Hall volunteered to carry some of the wiretap equipment for Lentz, and Fargo served as their lookout. After Lentz climbed the pole, he or Hall was to radio Johnston, so that the latter could make radio contact with Sheriff Hullum, who had driven to a location near the Maddox residence. Sheriff Hullum then was to go to the residence of his informant, who shared a party line with Maddox, and make a phone call to the sheriff's office, keeping the party line open to enable Lentz to find it and tap into it. All went according to plan for a time, but, once atop the pole, Lentz attempted for 15 or 20 minutes to find the right line, to no avail. He notified Deputy Hall of this, and Hall walked to the truck and told Fargo. Fargo drove about a mile to the other side of the Maddox residence, found Hullum, and told him of the problem. After Hullum discussed and then rejected the possibility of using someone else to do the wiretap, Hullum told Fargo to direct Lentz to try again for about a half hour to tap the line and, if unsuccessful, to stop and return to the sheriff's office. When Fargo returned to the tap site, he had some difficulty locating Hall and Lentz; after he found them, he told them to break off work. The men all returned to the sheriff's office, and shortly thereafter, Lentz and Sheriff Hullum were arrested.
Sufficiency of the Evidence
As one of the elements of the government's case under 18 U.S.C. § 2511(1)(a), it had to prove that the telephone conversations at issue were "wire communications," which are defined in 18 U.S.C. § 2510. 7
Both defendants contend that the government's evidence was insufficient to show that the wire communication in this case was furnished by a common carrier.
Defendants carry a heavy burden here, since the evidence must be considered in the light most favorable to the verdict, and we must draw all reasonable inferences and decide credibility choices in favor of the jury's decision. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Hitsman, 604 F.2d 443 (5th Cir. 1979). The government introduced testimony by Mary Gail Knight, who lived in the Maddox residence during the attempted wiretap, indicating that her telephone number was 756-4478 and that the telephone line was a four-party line. Mrs. Wall, from whose residence Sheriff Hullum placed the call to the sheriff's office...
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