Brooks v. United States

• Citation: 416 F.2d 1044
• Decision Date: 22 September 1969
• Docket Number: No. 25380.,25380.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: Loren (Red) BROOKS, Rita Moore and Gale Kenneth Nipp, Appellants, v. UNITED STATES of America, Appellee.

416 F.2d 1044 (1969)

Loren (Red) BROOKS, Rita Moore and Gale Kenneth Nipp, Appellants, v. UNITED STATES of America, Appellee.

No. 25380.

United States Court of Appeals Fifth Circuit.

September 22, 1969.

W. S. Moore, Jackson, Miss., Roy O. Parker, Tupelo, Miss., for appellants.

H. M. Ray, U. S. Atty., Oxford, Miss., J. Murray Akers, Asst. U. S. Atty., Oxford, Miss., for appellee.

Before AINSWORTH and SIMPSON, Circuit Judges, and SINGLETON, District Judge.

SIMPSON, Circuit Judge:

Appellants Gale Kenneth Nipp (Nipp) and Rita Moore (Moore) were found guilty of violation of Title 18, U.S.C. Section 2113(a) (second paragraph) and Section 2, for burglarizing the Shannon, Mississippi, branch of the Peoples Bank and Trust Company of Tupelo, Mississippi, a Federal Deposit Insurance Corporation insured bank, and along with Loren "Red" Brooks (Brooks) they were found guilty of conspiring, in violation of Title 18, U.S.C. Section 371, to commit offenses against the United States in respect to crimes against federally insured banks. All three appeal from judgments of conviction and sentences imposed as a result of these jury verdicts. We reverse as to Brooks and affirm as to Nipp and Moore.

Nipp and Moore rented and occupied the W. A. Shaw cabin in the Pickwick lake area near the Tennessee line in Tishomingo County, Northern District of Mississippi, on May 28, 1967. Nipp used an alias and Moore posed as his wife. They were visited by appellant Brooks and by another alleged co-conspirator, Donald Edwin Moore, who was indicted with appellants but who was at large at the time of the trial below. The Shannon Office of the Peoples Bank, located in the Northern District of Mississippi, was burglarized on May 29, 1967, and on June 14, Donald Moore was arrested in Louisville, Kentucky, in possession of Series "E" Savings Bonds stolen during that burglary. On June 20, the Branch Bank of the Holmes County Bank and Trust Company in West, Mississippi, was burglarized in a manner similar to the Shannon burglary. Safety deposit boxes, their contents, and the container holding the boxes were stolen. In late June and early July, various articles taken from the West Branch Bank were found in the same area as the Shaw cabin which Nipp rented and occupied with Moore.

Ralph D. Gardner, a Special Agent of the Federal Bureau of Investigation, on July 5, 1967, executed a search warrant affidavit, and stated in the affidavit that he had reason to believe that the Shaw cabin was being used to conceal stolen property and burglary tools and that from his personal knowledge he had reason to believe that the instruments and tools listed in the affidavit had been used in the two bank burglaries mentioned above. As facts tending to establish the grounds for the issuance of the search warrant, Gardner set forth the following:

"That the following information was furnished me by the signed and sworn affidavit of Sheriff James Bishop, who is known to me as the Sheriff of Tishomingo County, Mississippi: That on June 26, 1967, an informant of Sheriff Bishop of long standing reliability, had occasion to be on the above described premises at the invitation of the occupants, and that while in said cabin located on said premises he observed the following items to-wit: Oxygen and acetylene tanks, hoses designed for use with oxygen-acetylene equipment, a cutting torch, numerous tools suitable for use in burglaries, and that said items were partially concealed in one of the back rooms of said cabin. Said informant further identified from a group of photographs, photographs of Rita May Williams, alias Rita Moore and Donald Edwin Moore as two of the individuals present in said cabin. The said informant furnished other relevant and pertinent information to establish grounds for this search and seizure in the above referred to affidavit furnished by Sheriff James Bishop and the affidavit is attached hereto and is incorporated and made a part of this affidavit."

Sheriff Bishop's affidavit, which was filed with the affidavit of Agent Gardner, described his informant as a person of good moral character and excellent community reputation for truth and veracity, and as one who had furnished reliable information on numerous past occasions and who had never given the sheriff any false information. The information set forth was essentially the same as that contained in Agent Gardner's affidavit, but was much more detailed and specific. The suspicious movements over a period of several weeks of persons and vehicles to and away from the Shaw cabin and its adjacent lot were related in detail including the absence of the three men described as frequenting the cabin from about 11 P.M. until 5 A.M. the night of the West Branch bank robbery, June 20-21. One of these three men was identified as burning a large pile of papers and other items in the area immediately behind the cabin during the afternoon of June 21. The informant later examined the trash pile where the burning occurred and found charred remains of clothing and business-type papers, a pair of burned cutting pliers, and charred remnants of hose equipment such as is used with oxygen-acetylene equipment. (Evidence at the scenes of the two burglaries indicated that acetylene torches had been used to effect entry.) Also incorporated and filed with Agent Gardner's affidavit were affidavits of a private citizen who stated that he had placed his daughter's social security card in his safety deposit box at the West Branch of the Holmes County Bank and Trust Company in West, Mississippi, and that neither he nor his daughter had been to the Pickwick dam area since she obtained her social security card, and the affidavit of another private citizen stating that he had found the social security card on June 24 in a recreation area on Pickwick Lake. The United States Commissioner on July 5 issued a warrant for the search of the premises known as the lot and cabin of Andy Shaw, finding probable cause on the basis of the affidavits, Donald Moore's arrest in possession of the Series "E" Bonds, and Nipp's reputation (verified by Agent Gardner) as a known safe burglar in the south and southwest. Official FBI records were identified by the Gardner affidavit as the source of the last two statements.

Agents of the Federal Bureau of Investigation had the Shaw cabin under surveillance, and on July 12, when Nipp and Moore came to the cabin, these agents served the search warrant and conducted a search of the cabin and of the automobile in which Nipp and Moore had arrived. The search turned up a large number of items of a highly incriminating nature, and Nipp and Moore, who were then placed under arrest, made incriminating statements to the arresting officers.

An indictment was filed on July 19, 1967, charging the three appellants, along with Donald Edwin Moore and Billy Shoemake, with conspiring, and charging Donald Edwin Moore, Rita Moore, and Gale Kenneth Nipp with the substantive offense of burglary of the Shannon bank. Brooks and Shoemake were arrested in Little Rock, Arkansas, on July 19. On September 19 the indictment was dismissed as to Shoemake. The trial proceeded against these three appellants, beginning on September 25, 1967, and the jury returned a verdict finding Brooks, Rita Moore, and Nipp guilty as charged in the indictment. On October 18, 1967, the appellants were sentenced to the following terms of imprisonment: Brooks, five years; Moore, two consecutive three-year terms; and Nipp, consecutive terms of five years and fifteen years.

I.

On September 25, the date the case was set for trial, appellants Nipp and Moore filed a motion to quash the indictment and the petit jury venire on the ground that the jury selection system used in the Northern District of Mississippi failed to produce an acceptable number of females for jury service in that district. The trial judge did not abuse his discretion in concluding that the motion came too late. Appellants were represented by counsel at their arraignment on August 3, 1967, and on their behalf he waived the reading of the indictment and entered pleas of not guilty. Counsel was told by the court that "in the event any of the defendants have any motions, I would like those filed within 15 days". The attorney who represented appellants at that time subsequently withdrew from the case, stating at the time that the court had specifically ruled that all motions must be filed within 15 days. On the day the trial was to begin, when this motion attacking the jury venire was presented, the trial court, after hearing counsel, said that from counsel's statement, from the length of time the indictment had been pending and the length of time from the arraignment, the court felt that the motion was filed primarily to obtain a continuance. Holding the motion was not timely filed, the court declined to consider it and overruled it.¹ Under these circumstances the decision of the trial court was clearly not an abuse of discretion, and his ruling denying the motion was not error.

II.

We do not deem it necessary to consider any of the numerous procedural questions raised by appellant Brooks, because the evidence against him is so slight that his conviction can not stand. The sufficiency of the evidence is questioned by all three appellants. As to Nipp and Rita Moore, however, the evidence obtained as a result of the search of the car and cabin and their statements to F.B.I. agents is more than sufficient to support the jury's finding as to their guilt. Matters stand differently as to Brooks. The only charge against Brooks was that of conspiracy, and the record is devoid of evidence as to his having entered into or even having known of any criminal scheme. There is some evidence in the form of a palm print and in identification by a witness, the caretaker of the Shaw cabin, to put Brooks at the cabin during the time it was occupied by Nipp and Moore. On this appeal the government relies...