Bryant v. United States, 16559.

• Decision Date: 28 February 1958
• Docket Number: No. 16559.,16559.
• Parties: Lonnie Robert BRYANT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 746 (1958)

Lonnie Robert BRYANT, Appellant, v. UNITED STATES of America, Appellee.

No. 16559.

United States Court of Appeals Fifth Circuit.

February 28, 1958.

C. W. Bennett, Jr., Houston, Tex., for appellant.

Malcolm R. Wilkey, U. S. Atty., Oscar D. Kennerly, Asst. U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant was suspected of being in the narcotics racket and was under the surveillance of Federal narcotics agents. The agents were informed that the appellant was about to make a delivery of narcotics and went to the place where they expected it to occur. There they saw appellant with a package in his hand which he cached in a clump of weeds. The agents arrested the appellant. They found the package and discovered that it contained heroin in gelatine capsules and the capsules, in lots of twenty, in rubber balloons. The agents then procured a search warrant and searched the appellant's residence where the officers found milk sugar, a box of empty gelatine capsules, rubber balloons and a paper bag from which a part had been torn matching the paper wrapping of the heroin found at the place of arrest. The appellant was convicted of unlawfully purchasing narcotics, under 26 U.S.C.A. § 4704, and of facilitating the transportation and concealment, after importation, of narcotics, under 21 U.S.C.A. § 174. Prison sentences and fines were imposed. On appeal from his conviction, the appellant discusses a number of matters occurring before and during his trial from which he would have us find reversible error.

The indictment against the appellant was returned on September 24, 1956. A week later, on October 1, 1956, the appellant filed a motion to suppress the evidence obtained in the search of his apartment, claiming an illegal search and seizure. The motion was amended. It was overruled on November 5, 1956. On February 27, 1957, a motion for rehearing was filed. On the same day the appellant moved to suppress the evidence obtained at the time and place of his arrest, claiming the arrest was without probable cause. At the time these two motions were made the appellant moved for a continuance claiming the need of additional time to file another motion to suppress. On February 28, 1957, the case was tried. The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge, and his ruling on such a motion will not be disturbed on appeal unless an abuse of discretion is shown. Girard Trust Co. v. Amsterdam, 5 Cir., 1942, 128 F.2d 376. No abuse of discretion is shown here.

During the trial the district attorney requested leave to approach the bench and, with counsel for the appellant, had a discussion with the judge which the reporter recited was "held at the bench out of the hearing of the jury." In this discussion the court stated to Government counsel, "I think you have made a prima facie case." It was not suggested to the trial court that any error resulted from the comment. We will not, in these circumstances, indulge in any speculation that the reporter's recital was incorrect and do not consider whether the remark might have been prejudicial if made in the presence and hearing of the jury.

The appellant, in his brief, suggests that he had a defense of entrapment and had been deprived of the opportunity of asserting it. The record does not bear out the contention. Cf. Rodriguez v. United States, 5 Cir., 1955, 227 F.2d 912.

The court gave a charge on reasonable doubt. A requested charge on circumstantial evidence was refused. This was proper. Where the jury is properly instructed on the standards for reasonable doubt, an additional instruction that circumstantial evidence must be such as to exclude every reasonable hypothesis other than that of guilt is confusing and incorrect. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150.

In a number of different ways the appellant asserts error in the use by the Government of the heroin found at the site of the arrest and of the related evidentiary material found at his place of residence. He asserts an arrest without probable cause as a basis for his objection to the use of the heroin as evidence. He attacks the legality of the search and seizure in his objection to the use as evidence of the objects found at the apartment. As a witness on his own behalf, the appellant denied ever having seen the package containing the heroin or its contents. It was not on his person when it was picked up by the officers. As to it the appellant had no cause to complain of its use as evidence since it was taken neither from his person nor from his dwelling and no search was involved in its seizure. 47 Am.Jur. 513, 516, Searches and Seizures, §§ 17, 20.

The admissibility of the articles obtained at the appellant's apartment depends upon the validity of the search warrant. The affidavit on which the search warrant was based described the premises as being occupied by the appellant and stated that heroin was concealed thereon and that the appellant was seen to leave the premises with heroin hydrochloride in his possession. The affidavit disclosed probable cause and was sufficient.

The search warrant recited the making of an affidavit that heroin was then...