U.S. v. Green

• Decision Date: 12 January 1981
• Docket Number: No. 80-5148,80-5148
• Citation: 634 F.2d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael L. GREEN, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 222

634 F.2d 222

UNITED STATES of America, Plaintiff-Appellee, v. Michael L. GREEN, Defendant-Appellant.

No. 80-5148.

United States Court of Appeals, Fifth Circuit.

Unit B

Jan. 12, 1981.

Joseph Milchen, San Diego, Cal., for defendant-appellant.

Grubert Roger Markley, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Defendant Green was convicted on five counts of possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1). He appeals, urging that the evidence was insufficient to sustain his conviction and that evidence of prior misconduct was improperly admitted at trial. For reasons explained below, we find no merit to these contentions. Defendant also raises several Fourth Amendment issues, the thrust of which is that the trial court erred in denying his pre-trial motion to suppress evidence, namely, the firearms, seized pursuant to an allegedly deficient search warrant. ¹ Defendant Green contends that the affidavits supporting the search warrant did not set forth sufficient underlying circumstances to enable the magistrate to independently judge the validity of the informant's conclusion. Green also argues that the affidavits did not establish probable cause for issuance of the warrant. Assuming without deciding that the affidavits were sufficient to establish reliability of the informant, see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), we conclude that the affidavits did not reveal probable cause to issue the warrant.

Defendant's non-constitutional grounds can be disposed of easily. Concerning the sufficiency of the evidence issue, defendant contends that the Government did not prove dominion and control sufficient to prove possession. But the Government introduced evidence that the firearms were seized at the Greens' residence, in a bedroom containing men's clothing and a book bearing defendant's fingerprints. Viewing the evidence in the light most favorable to the Government, see, e. g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and making all credibility choices and inferences in support of the jury's verdict, see, e. g., United States v. Black, 497 F.2d 1039 (5th Cir. 1974), we conclude that the evidence presented at trial was sufficient to support the jury verdict.

Also without merit is the contention that the district court erroneously admitted evidence of uncharged alleged prior misconduct by allowing a Government witness to testify that defendant received firearms from the witness more than six months before the charged possessory offense. ² But defendant's knowledge and intent were in issue; the Government was therefore justified in presenting evidence of prior similar misconduct. See United States v. Webb, 625 F.2d 709 (5th Cir. 1980); United States v. King, 505 F.2d 602 (5th Cir. 1974); Fed.R.Evid. 404(b). The evidence was properly admitted for consideration on all counts of the indictment.

The Fourth Amendment issues are more bothersome. The facts tending to establish the grounds for issuance of the search warrant were contained in two affidavits; these affidavits reveal ample circumstances from which a magistrate could conclude that defendant Green and his wife, Judith Green, were engaged in a wide variety of criminal activities in California, including conspiracies to obstruct justice, to suborn perjury, and to violate citizens' civil rights. The affidavits described meetings and transactions in California between defendant Green, Judith Green, and an informant named Richard Shepard. Shepard relayed information that the Greens employed him to "plant" LSD in a San Diego laboratory in an attempt to impute criminal activity to supposedly innocent persons. ³ During one of the meetings the Greens discussed with Shepard where they would obtain the LSD. Shepard asked about the LSD that Judith Green had in a safety deposit box in Key West, Florida; without acknowledging the possession of LSD in any location, the Greens told Shepard to secure some liquid LSD.

The affidavits further attest to the existence and substance of several telephone conversations between Shepard and the Greens, many of which were taped by Shepard. After listening to the tape of one conversation that was probative of criminal activity, the affiant, an experienced law enforcement officer, concluded that the Greens were also taping the conversation. The location at which the conversations took place was not specified.

Finally, the affidavits disclosed that Shepard had admitted stealing a microscope from the University of California, Berkeley campus, removing all identifying numbers from the microscope, and giving it to Judith Green. Berkeley Police Department records verified the theft. Shepard further told the affiant that he believed the microscope was at the Greens' Key West, Florida, residence; no basis for Shepard's belief was given.

The warrant specified the object of the search to be:

tape recordings and recording devices; notes and memoranda regarding conversations, meetings, telephone numbers, discussions and plans with Richard Shepard, Sharon Shepard, Michael Lewis Green, Judy Green, Edward Daley and Joe Carroll; financial records and correspondence regarding the retention of Louis Rimbach and Richard Shepard for services rendered; notes, plans and memoranda concerning LSD, drugs, drug precursors, chemical formulas and laboratory equipment; telephone bills, toll records and payment records for telephone services, money orders and telegrams; letters, memoranda and agreements concerning plea bargains and dismissals in cases involving Richard Shepard, Michael Green and Judy Green; notes, memoranda and records concerning conversations about "dirty dishes", "clear liquid", "liquid acid", PCP and other controlled substances; a tape recording made about February 16, 1978, by Richard Shepard and memoranda, receipts, correspondence, records, contracts and vouchers regarding the payment of money to Richard Shepard, Bruce Hochman, Les Osborne, E. Mac Amos for services rendered; safety deposit box keys and records; bank records, checks, passbook accounts, statements, etc.; travel plans, notes, records, bills, etc.; foreign bank records, documents, certificates, records, passbooks, etc.; original of a list of chemicals supplied to Richard Shepard and all copies; stolen property specifically a Toyota microscope with serial numbers and identifying marks removed; a key or keys to the Technician Company; rental and lease agreements or documents for housing, shops, warehouses, and equipment; personal telephone directories and address books, etc., which are : fruits and instrumentalities and evidence of the crimes of: (1) conspiracy to obstruct justice; (2) conspiracy to suborn perjury; (3) conspiracy to possess controlled substance with intent to distribute and (4) conspiracy to violate a citizen's civil rights; in violation of Title 18, U.S.C. §§ 371, 1503, 1622 and 241; Title 21, U.S.C. §§ 841 and 846.

The warrant was executed, and five firearms were seized. ⁴ In addition, law enforcement officers seized approximately 200 pounds of miscellaneous matter, including a brochure entitled "How to Get a Good Suntan"; an eyeglass screw-driver repair kit, certificates of rabies vaccinations for a dog, a pamphlet of Rules of Conduct for Parents (Mary...