Bourg v. United States, 18281.

• Decision Date: 30 December 1960
• Docket Number: No. 18281.,18281.
• Citation: 286 F.2d 124
• Parties: Anderson A. BOURG and Loyal S. Ledet, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F.2d 124 (1960)

Anderson A. BOURG and Loyal S. Ledet, Appellants, v. UNITED STATES of America, Appellee.

No. 18281.

United States Court of Appeals Fifth Circuit.

December 30, 1960.

Francis A. Ledet, Houma, La., for appellants.

Brian S. Odem, Asst. U. S. Atty., Brownsville, Tex., William B. Butler, U. S. Atty., Houston, Tex., for appellee.

Before RIVES, CAMERON and JONES, Circuit Judges.

RIVES, Circuit Judge.

The first count of the indictment charged the defendants with unlawfully importing a narcotic drug, to-wit, 41 grams of heroin hydrochloride, into the United States; and the second count charged them with unlawfully receiving, concealing and transporting said narcotic drug after it had been imported into the United States contrary to law. Each count charged a violation of 21 U.S.C.A. § 174.¹ The defendants were found guilty on both counts. Bourg was sentenced to imprisonment for six years, and Ledet was sentenced to imprisonment for seven years. Each defendant makes two contentions on appeal: 1. That the district court erred in denying his motion for a suppression of evidence; 2. That the district court erred in denying his motion for judgment of acquittal.

Motion to Suppress.

The district court exercised its discretion to entertain motions to suppress at the trial,² and denied the motions. The evidence on the motions heard in the absence of the jury showed the following: Customs Agent Morgan stationed at Laredo, Texas, between 8:30 and 9:00 on the night of October 29, 1959, "received information from a reliable source³ that a new, red and white vehicle with Louisiana plates was in Nueva Laredo and that the two occupants of the vehicle had negotiated for a quantity of narcotics, and that they had further put down a quantity of money, and that they were staying at the Virginia Courts." He relayed the information by radio to several other agents who placed the Virginia Courts Motel under observation. At about 9:20 P.M. a red and white Ford automobile, with Louisiana license, was observed parked at the motel. At about 10:00 P.M. the car left the motel and was driven into Mexico. At about 10:40 P.M. the car returned, but was not then searched as the agents were not informed whether the narcotics had been delivered. At about 12:15 A. M., on October 30, the vehicle departed from the motel and proceeded north a short distance to a filling station. Agent Hazur testified that he had by that time learned by radio communication that the men were then in possession of a quantity of heroin. When the car stopped at the filling station, the agents ordered the occupants out, searched the car, discovered the narcotics, and arrested the defendants.

There was no dispute but that the informant was a "reliable source." The peculiar description of the automobile, its location at the Virginia Courts Motel, its occupancy by two men, and its operation into and out of Mexico, all corresponded with the information from the "reliable source." The district court correctly ruled, we think, that the information in the possession of the agents was sufficient to justify the search of the automobile. Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

Sufficiency of the Evidence.

On the trial before the jury, the Government proved that Bourg was driving and admitted ownership of the automobile; that the narcotics were in a small brown paper bag underneath the right seat in which Ledet had been sitting; that on the front seat, covered with a white handkerchief, were two loaded .38 caliber revolvers and a box containing 29 cartridges.

In conversations with the agents following the search and arrest, both defendants denied knowing anything about the presence of the heroin in the automobile. Upon the trial, Ledet took the stand in his own behalf and Bourg elected not to testify. Some pertinent facts were disclosed by their statements to the agents and by Ledet's testimony. Ledet was about 30 years of age and Bourg about 23. Both lived in Houma, Louisiana. They had known each other for several years. On Wednesday morning preceding their arrest, they had left Houma in Bourg's automobile and had driven 751 miles to Laredo, Texas, simply on a pleasure jaunt. When they left Houma, Bourg had the automobile and about $900 in money, while Ledet had only about $25. Bourg agreed to pay all expenses. They had visited the "night spots" in Nueva Laredo.

Bourg stated to the agents that he had given $800 to Ledet on the evening before their arrest, and that he did not know what Ledet wanted the money for. The agents asked him to repeat that statement to Ledet. "And he stated to defendant Ledet, more or less, `You remember, I gave you $800 yesterday.' And Defendant Ledet merely shook his head, and stated, `No, you didn't give me $800.'"

The Government argues that, by moving to suppress the evidence, both defendants impliedly admitted possession of the heroin. Since the indictment itself charged the defendants with possession, they had standing to move to suppress without any admission of possession. "It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government." Jones v. United States, 1960, 362 U.S. 257, 263, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697.

In circumstantial evidence cases, "the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the...